U.S. Supreme Court: Post-Ginsburg Edition

I mean there are whistleblower statutes I guess (closest thing I can think of), but there’s at least a connection to the whistleblower plaintiff there, and also I think the government is typically harmed in those situations. Eg a whistleblower can sue for Medicare fraud that defrauds the government. I can’t just randomly bring a lawsuit against a doctor for Medicare fraud.

A court can always strike down one provision of a law while retaining those parts not dependent upon the part declared void. The six week restriction does not depend on the right to sue, which seems like it was just thrown in there to create an atmosphere of fear and uncertainty.

"Here is federal legislation that would invalidate the Texas abortion law and enshrine Roe v Wade as law of the land."

this might buy some time but it's magical thinking that it would "enshrine" anything given the current SCOTUS.

A court can always strike down one provision of a law while retaining those parts not dependent upon the part declared void. The six week restriction does not depend on the right to sue, which seems like it was just thrown in there to create an atmosphere of fear and uncertainty.

― it is to laugh, like so, ha! (Aimless), Thursday, September 2, 2021 4:19 PM (twenty-five minutes ago) bookmarkflaglink

Certainly true (not always true but here I think it would be the case), just wondering whether there is also, separate from Roe, a constitutional basis to invalidate the enforcement part of the law, which is creepy and has even broader implications.

Time to retire, Breyer
It's time to leave, Steve
There must be 50 ways to leave your judgeship

― Robert Cray-Cray (Ye Mad Puffin), Thursday, 2 September 2021 19:46 (two hours ago) link

no need to discuss much!

― sleeve, Thursday, 2 September 2021 19:49 (two hours ago) link

Just stick it to Gorsuch!

― Guayaquil (eephus!), Thursday, 2 September 2021 19:50 (two hours ago) link

You're looking long in the tooth, Ruth (sorry)

for this particular statute the six week restriction does depend on the private right of action. one of the things it's trying to do is say that this isn't unconstitutional because there's no state action involved:

Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT.
(a) Notwithstanding Section 171.005 or any other law, the
requirements of this subchapter shall be enforced exclusively
through the private civil actions described in Section 171.208. No
enforcement of this subchapter, and no enforcement of Chapters 19
and 22, Penal Code, in response to violations of this subchapter,
may be taken or threatened by this state, a political subdivision, a
district or county attorney, or an executive or administrative
officer or employee of this state or a political subdivision
against any person, except as provided in Section 171.208.

which is partially why the supreme court wouldn't hear it. they would not enjoin the court that would ultimately hear the case, and there is no the attorney general or a law enforcement entity to enjoin.

the

And that hot mess is what the justices in their wisdom chose not to issue an injunction to prevent?! Christ on a cracker, they're sending in the clowns.

ty harbl

but what damages could a court assess, if the plaintiff was never damaged? how can standing be conjured out of nothing?

a statute can be written to give a person standing, probably a more appropriate phrase is enforcement authority or right of action, because it doesn't require the enforcing person to be harmed. another way it's not like the ADA where (as far as i know) you have to include in your initial pleading that you are the person harmed.

Sen. Susan Collins emerged from her face-to-face meeting with then-Supreme Court nominee Brett M. Kavanaugh in August 2018 insisting that he had reassured her that Roe v. Wade was settled law.

Two months later, Collins (R-Maine), who supports abortion rights, declared in a lengthy Senate floor speech that Kavanaugh had a “record of judicial independence” and dismissed the notion that he might overturn precedent. She later would vote to confirm him to the lifetime post.

Collins’s past assertions came into sharp relief Wednesday as Kavanaugh joined four of his fellow conservatives on the court in declining to block one of the country’s most restrictive abortion laws, a Texas statute that bans the procedure as early as six weeks into pregnancy with no exception for rape or incest. The court’s action stands as the most serious threat to the landmark ruling establishing a woman’s right to abortion in nearly 50 years.

Collins’s support for Kavanaugh — and her insistence that he would uphold Roe — was crucial in installing then-President Donald Trump’s nominee to the Supreme Court as the Senate confirmed him by one of the narrowest margins in history, a near party-line 50-to-48 vote.

His decision late Wednesday night revives questions of whether Collins was misled by the nominee or whether she was intent on supporting him no matter his views on abortion rights. Collins’s full-throated endorsement of Kavanaugh and her swing vote means she will always be associated with this Supreme Court justice, winning praise from conservatives and widespread criticism from liberals.

geeeeee what could it be? it couldn't be both that's for sure!

Q. Could you grant a private right of action to citizens to sue any provider of religious services for $1M? Asking for a friend.

oh man, that would be nice. there are a lot of church people i'd like to sue, including the people that forced me to attend

xposts oh and i meant to add that this statute establishes a $10,000 minimum penalty. it is not in any way damages under the normal definition of damages. it's a fine, just paid to the plaintiff.

right, so that would be like how my former pastor is going to pay me $10K once i prove his guilt

the music leader is, too. kevin. i don't care how consistent you were over the years, kevin, and how you combined bluegrass with southern gospel and korgs to mesmerize a generation of complete fucking dumbasses - you owe me $10K

i believe kevin belongs in jail!

I mean this shit wouldn't pass muster for two seconds, but I absolutely think the SC is going to let this go when they finally rule on the merits (if they even bother to).

it's just a bogus court now, if it wasn't already. i mean, its real -- this has real repercussions. but does anyone think this court is going to be helpful when the 2024 election is contested by republicans?

joke supreme court that's just for farts

very long night of the soul now for susan collins and lisa murkowski, not to mention jeff flake. they must be feeling it right now, wow

:)

Lol @Brad

dear journal.

this is it. truly, a long, dark night of the soul. i feel like may have earned it somehow, this time. maybe i am at partly at fault? i faced the golden boy across my desk in the back corner of my senatorial suite. "do you believe in abortion?" i asked? "excuse me", he parried. "i'm just kidding! who cares! just tell me what i need to hear!", i said. "what do you need to hear, Ms. Collins?" the golden boy asked, and i felt embarrassed at his youthful silliness. "tell me what you think about ABORTION, my dear kavanaugh!" i squeezed out of my dead face. "what do you want me to think..." i nodded along "yes i think that you will be very" "i will be so very" "practical" and "dispassionate" and "impartial" yes!, yes we will!

why did my dolls look back at me that way when i told the story of how it would be? because they feel emotions directly like daggers, they have no shield for them. they are just stupid plastic under the mess, to be thrown away when they're too dirty. i look at the golden boy and feel nothing at all for this disputable handsome mess of brown hair. he liked beer. we all did, in that time. we couldn't retrace the exact blocks to our college friends' houses...we all moved all of the time anyway.

any rate, too tired to worry about this any more. i look denial in the face and i say NO!
susan collins

Keep your farts off my body.

Texas is basically a small Soviet Republic at this point, with neighbors spying on neighbors, hoping to collect a cash bounty, in addition to being an apartheid state for nonwhite voters. What woman or POC could possibly feel safe there? To say nothing of the gun proliferation.

— Joy-Ann (Pro-Democracy) Reid 😷 (@JoyAnnReid) September 2, 2021

You would think companies like Apple would exert pressure by not putting offices in these states, but capitalism.

Lots of companies have put economic pressure on states like Georgia and North Carolina for (relatively) less, haven't they?

Actually, not even relatively less, I should have said relatively similar impositions. Let's see what happens in Texas, but I bet companies respond at least a little if the public pressure is enough.

ugh joy reid

I'm more surprised xyzz let a passing jab at a Soviet republic go unmentioned!

Wait is anything that Ms Reid said NOT true? Idgi

Anyway here's a Twitter thread about why calling for boycotts when Texas haven't (?) called for boycotts might be a bad idea.

Yes because people suddenly being unemployed will surely make the whole situation better you goddamned ghouls. https://t.co/RJAmDjZWDH

— 🚩Shepherd🏴 (@NeolithicSheep) September 2, 2021

You would think companies like Apple would exert pressure by not putting offices in these states, but capitalism.

I've been surprised to see quite a few twitter threads scolding people for stating that companies/productions should pull out of Texas. While I definitely agree that the, "fuck Texas, anyone that lives there deserves this shit" attitude is heinous, I don't really think it's at all bad to believe that one of the consequences of this bullshit should be seeing them take a massive financial hit.

lol missed that thread in the xpost.

I guess. But shit like the big sports pulling their showcase games and series out of other states made a difference in the past.

The "financial hit" will not hurt anyone responsible for this law. It will hurt the least well resourced and least protected people first, hardest, and solely.

banning abortion, snitching on your neighbor, being an apartheid state, and having tons of guns everywhere are american enough without bringing the soviet union into it. there are various "well actually" arguments that can be made about the individual elements of it but mainly i just don't like joy reid or this type of comparison. same as the "this is just like saudi arabia!" things flying around.

xpost - I don't agree with "solely", otherwise you aren't wrong.

But I don't understand how, say, pulling the MLB all-star game out of a city would "solely" hurt the least protected. It's not like they would otherwise completely shut down the stadium and fire all the vendors, they just lose out on the national spotlight for a night. I don't think that's a bad thing.

It’s being talked about the Virginia gubernatorial campaign

Terry McAuliffe, on press call, says "there's a good way that Virginia could go the way of Texas" if he loses. He calls Glenn Youngkin the most anti-abortion R candidate in VA history.

"That's saying something, because I ran against Ken Cuccinelli."

— Dave Weigel (@daveweigel) September 2, 2021

McAuliffe says the Texas law could help Virginia court companies to uproot and move there. "We should call Dell, we should call American Airlines."

— Dave Weigel (@daveweigel) September 2, 2021

The "financial hit" will not hurt anyone responsible for this law. It will hurt the least well resourced and least protected people first, hardest, and solely.

But most political capital should not be put on boycotts and instead on political action to pack the Supreme Court, pass federal legislation, and litigate.

political action to pack the Supreme Court, pass federal legislation, and litigate.

Right, but I think people want to know what else they can do since this is largely out of ours hands and depends on the action of seemingly disinterested, conflicted or downright corrupt Dem leadership. People are understandably tired of waiting for the leaders they voted in to do the right thing and want to know what they can do after donating.

yeah, people don't want to feel helpless and want to find actions they personally can take.

protesting of course is one, donating to the right organizations...

Exactly, which is why I think so many are taking to the "overwhelm the reporting system" route, since it feels like something.

a statute can be written to give a person standing, probably a more appropriate phrase is enforcement authority or right of action, because it doesn't require the enforcing person to be harmed. another way it's not like the ADA where (as far as i know) you have to include in your initial pleading that you are the person harmed.

― criminally negligible (harbl), Thursday, 2 September 2021 22:47 (yesterday) link

There is some vague legal precedent for the idea of private enforcement in various statutes and caselaw, e.g. references to "private attorneys general" in class action caselaw, but, again, you have to have been harmed to survive a motion to dismiss, and typically also to then serve as class representative. There are whistleblower actions where, e.g., an employee of a medical clinic committing medicare fraud could bring the action, and there are rewards for the whistleblower, but, again, the whistleblower has a connection to the action, even if they aren't the party directly harmed. Having a hard time thinking of a statute where you don't have to be in the "zone of interests" of the statute you're enforcing (this came up as past SCOTUS language when I was trying to figure this out)

yeah i don't think there is anything in the u.s. constitution that would limit that kind of thing, and there is good reason for the qui tam/whistleblower phenomenon because by the nature of the issue the government wouldn't know about it without the whistleblower. here the state has said they have a government interest in not having abortions occur after there is a heartbeat, but they are not exercising the right to enforce a law meant to protect that interest because it would be unconstitutional for them to do that. there is plenty of law saying the state cannot employ non-government actors to violate the 4th or 5th amendment, but i don't think substantive enforcement of a criminal law by a private person has ever come up. of course this is civil, not criminal, but it's obvious they are just putting the private citizen in the government's place, and even in non-criminal law enforcement like speeding tickets and immigration offenses the government would have to follow the constitution. the 4th amendment analogy is not irrelevant here because griswold, roe v. wade, et al. derive the privacy right in part from the 4th and other bill of rights amendments. there would be no reason for the state to completely give up its right to prosecute e.g., speeding on a public highway, because it has an interest in doing that and can do so lawfully. if it decided it was going to delegate that right to a speed camera company, it can't first enact a statute saying speeding laws are only enforceable against one group, or deprive the alleged speeder of the right to a trial, or do anything else unconstitutional.

Yeah I think you're spot on that there's a due process issue. They're basically "deputizing" people to enforce the law, and therefore the same due process concerns should apply to the way it would be enforced. I wonder if there were ever cases regarding the forming of posses and that sort of thing.

There may also be questions about standing and right of action that pertain to the Texas state constitution and Texas law, just have no knowledge of that.

You just spent more time, with more real analysis, than the SC is going to ever give this law.