//  9/19/19  //  In-Depth Analysis

June Medical Services v. Gee involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. In February 2019, split five to four, the Supreme Court blocked this law from going into effect. That order suggests the Court is likely to grant review. This symposium addresses both the merits of the case and its broader context.

By David Strauss | Professor at University of Chicago Law School

There is not much mystery about what is going on in this case. Some Fifth Circuit judges do not like the Supreme Court’s decision in Whole Woman’s Health, which, of course, reversed an earlier decision of the Fifth Circuit. But the composition of the Supreme Court has changed since Whole Woman’s Health was decided. So the Fifth Circuit identified some gossamer distinctions between that case and this one – essentially disregarding the district court’s findings in the process -- and upheld the Louisiana statute.

Ordinarily, this case would be a straightforward candidate for summary reversal. But of course the circumstances are not ordinary, which is why the Fifth Circuit tried to do what it did in the first place. The case involves abortion, and there is reason to believe that a majority of the Supreme Court does not think there should be a constitutional right to an abortion.

Obviously rule of law values are at stake here. But there is also a more narrowly self-interested reason for a majority of the Court to reverse in this case. The Court should not encourage – in fact, it should make it a point to discourage – the kind of adventurism shown by the Fifth Circuit here. If it does not, it can expect other courts of appeals to do the same kind of thing. And, whatever the justices’ views, that is not something they should tolerate.

Let me explain. The current administration, and the Republican majority in the Senate, have of course installed two justices on the Court. But they have also loaded the lower federal courts with an extraordinary number of relatively young, highly committed judges who were overtly chosen because of their ideological views. However conservative the Supreme Court majority is, it is probably not as conservative as many of those lower court appointees want the Court to be. Or at least the lower court judges may want to move more quickly to get rid of precedents they don’t like – like Whole Woman’s Health or, for that matter, Roe v. Wade, or other cases that are on the Federalist Society’s hit list.

What can lower court judges do when they encounter a case that is, on a straight-up reading, governed by one of those hit-list precedents that they don’t like? Well, they can forthrightly say that they have to reach a result that they don’t want to reach, because precedent compels them to do so. They can even urge, in their opinions, that the Supreme Court overturn the precedent, acknowledging that, as lower court judges, they are powerless to do so. Then the Supreme Court can either accept the invitation to reconsider its precedent or decide that it does not want to do so, at least not yet. It can decline review and maintain the status quo.

But suppose you are a highly ideological lower court judge who thinks that the conservative majority on the Supreme Court (or at least some of its members) is too squishy – too cautious, too slow-moving, too reluctant to overturn precedents. Then you do what the Fifth Circuit did in this case. And now the Supreme Court cannot temporize. If it denies certiorari, it has signaled that Whole Woman’s Health is effectively not good law. Other states will do what Louisiana did, and other courts of appeals will get the message that they can uphold laws that are actually inconsistent with Whole Woman’s Health, as long as they provide some fig-leaf of a distinction. And the Supreme Court will have abdicated its role in a way that no one would defend as a matter of principle. It will have allowed what it says, over and over, it will not allow: lower courts to decide when a Supreme Court decision is no longer good law. Everyone is watching what the Supreme Court does in abortion cases, and the Court won’t escape the criticism it would get if it overruled Whole Woman’s Health itself; but in addition it will look craven and irresponsible.

Or the Court can agree to review the case. But now its choice is either to overrule a precedent that it might not want to overrule yet – one that is just three years old, when nothing has changed except who is on the Court -- or to reaffirm a precedent that it might not want to reaffirm. A lower court, by playing fast and loose with precedent – even precedents that a majority of the Court might not like – has forced the majority’s hand. It has effectively taken from the majority the ability to decide the pace at which it will change the law.

If the Court begins to allow lower courts to get away with jamming the Court like this, there is no reason to think this case will be the last time it happens. As conservative as many of us think the Supreme Court majority is, there are lots of lower court judges who are undoubtedly much further to the right. And there are undoubtedly many lower court judges who do think, or will come to think, that the Supreme Court majority – again, maybe just because of the reluctance of one member – moves too slowly. They have every incentive to put the majority in the position that this case puts them: allow a precedent of the Court to be effectively overruled by the lower courts or allow the lower courts to determine the Supreme Court’s agenda.

There is one way for the Supreme Court to keep from being put in this position time and again. It can send an unequivocal signal to lower court judges – specifically, judges who generally share the majority’s conservative views – that only the Court will decide when a precedent is no longer good law. A sharp summary reversal in an abortion case is a very good way to send that message. The Court does not have to reaffirm Whole Woman’s Health. It can write an opinion summarily reversing the Fifth Circuit’s decision that simply reminds the Fifth Circuit who is in charge of overturning Supreme Court precedent. That is what it should do here – out of its own self-interest.

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