George W. Bush’s nominees have long specialized in a certain kind of judicial “minimalism.” Not a view that the role of the judiciary in public life should be modest, but rather mischaracterizating past precedents to make transformative opinions appear modest. There’s nothing new about this — The New Deal Court was famous for speciously distinguishing rather than formally overruling the Gilded Age precedents it was overruling — but the Roberts/Alito version was both particularly cynical and cleverly designed to appeal to “everything is going to be just fine” legal liberals. Don’t buy it; what matters is what the Court is actually doing, not on how it formally describes how what it’s doing relates to the Court’s previous decisions.
The Court has now taken this to its logical conclusion: overruling landmark precedents while doing nothing al all:
Perhaps it was inevitable that this Supreme Court would overturn Roe v. Wade, notwith a momentous majority opinion, but by doing nothing. That’s all it took for the Supreme Court to let Texas’ six-week abortion ban take effect on Sept. 1: silence. As the clock ticked toward midnight, and anti-abortion protesters gathered outside Texas clinics to harass patients and staff, the justices kept mum. A few hours later, the country woke up to its post-Roe future.
At this moment, any person can sue anyone who “aids or abets” an abortion that takes place in Texas after six weeks of pregnancy—when more than 85 percent of abortions are performed—for a minimum of $10,000, plus attorneys’ fees. Any person can sue a clinic that performs these abortions and obtain a court order shutting it down. There is now a $10,000 bounty on the heads of every individual who facilitates abortion, including friends, family members, counselors, even clergy who support a patient’s decision to terminate. Anyone who forms the mere intent to “abet” an abortion may be sued, even if they do not follow through. Texas devised a devious workaround to Roe by threatening abortion patients’ entire support network with bankruptcy. And the Supreme Court let it happen.
How did we get here? The answer can be boiled down to two names: Brett Kavanaugh and Amy Coney Barrett. Both justices are significantly more conservative than their predecessors—in Barrett’s case, the polar opposite—and both are comfortable manipulating the court’s procedures to reach radical results. At the same time, both justices excel in overruling precedent without acknowledging it. SCOTUS has already taken a case that will probably gut abortion rights by June 2022. But with its new law, Texas handed Kavanaugh and Barrett a gift: They could eviscerate Roe months earlier without writing a single word. The 5th U.S. Circuit Court of Appeals did the dirty work for SCOTUS by preventing a federal judge from blocking the ban or even holding a hearing on its constitutionality. All the justices had to do was nothing.
The court’s inaction is especially galling in light of its aggressive intervention in cases it deems important. SCOTUS has treated case after case as an emergency in need of immediate resolution. It raced to block blue states’ COVID restrictions; it ended the CDC’s eviction moratorium in the midst of the Delta surge; and it continually cleared away lower court decisions blocking Donald Trump’s extreme cutbacks on legal immigration. To the conservative justices, these policies qualified as an emergency. Texas’ abortion ban, it seems, does not. By refusing to lift a finger, the Supreme Court has telegraphed to the states that it does not view an illegal assault on abortion rights as a pressing matter requiring immediate attention. It gave the green light to impatient red states that won’t wait for SCOTUS to reverse precedent. These states can pass blatantly unconstitutional laws, persuade far-right judges not to block them, and count on the Supreme Court to stay out of it.
Any liberal legal type who rushes to tell readers that Roe hasn’t really been overruled because the Court hasn’t said so in so many words is actively misleading their readers and running interference for an incredibly cynical con game. If abortion can be not only banned in Texas but enforced with an elaborate legal snitching scheme, then Roe and Casey have been overruled; it’s that simple. Republicans are counting on these silly games obscuring what they’re doing to an overwhelmingly popular decision.
In related news, not all heroes wear capes: