//  7/3/18  //  Quick Reactions

Over the weekend, Susan Collins made the rounds on the Sunday talk shows to discuss her role in the confirmation of Justice Kennedy’s replacement. Justice Kennedy’s retirement brought to the fore the President’s promise to appoint Justices who will overturn Roe v. Wade.* (The President once made the outlandish claim that his mere act of appointing Justices would “automatically” overturn Roe.) And Susan Collins’s line is that she is looking for judges who respect precedent.

When pressed by Jake Tapper on the fact that the President has promised to appoint Justices who will overturn Roe, Collins took the curious position that Roe was not in jeopardy because the Chief Justice is a friend to abortion, and because Justice Gorsuch’s respect for precedent means that he would never overrule Roe. Consider me … unconvinced that either the Chief or Justice Gorsuch would cast the fifth vote to save Roe.

I’m not sure what evidence Susan Collins has that the Chief is a friend of abortion (maybe it’s that he clerked for Chief Justice Rehnquist and served in the Department of Justice in the notorious pro-abortion Reagan administration?). Here is every “abortion” case the Chief Justice has decided.** You’ll note that in none of them did he side with the women seeking abortions or the doctors trying to provide it.

  • NIFLA v. Becerra invalidated two California laws that required so-called crisis pregnancy centers to disclose certain information. The law required licensed crisis pregnancy centers to disclose information about access to abortion and state funding for abortion. The law required unlicensed crisis pregnancy centers to disclose that the clinics were not medical clinics licensed by the state. The Chief Justice invalidated the regulation, and joined an opinion that made some passing negs at abortion, calling it “anything but an ‘uncontroversial’ topic,” and explaining that states have an interest in protecting fetal life but no similar interest (at least that could be vindicated) in ensuring that women have information about abortion.
  • Whole Woman’s Health v. Hellerstedt invalidated two Texas laws that would have closed all but a handful of abortion clinics in Texas located in major metropolitan areas. (The number of clinics would have shrunk from 40 some to 7, all located in major cities. Based on the district court’s findings “2 million women of reproductive age w[ould] live more than 50 miles from an abortion provider; 1.3 million w[ould] live more than 100 miles from an abortion provider; 900,000 w[ould] live more than 150 miles from an abortion provider; and 750,000 more than 200 miles from an abortion provider.) The Chief Justice joined the dissent, which would have let stand a ruling that allowed the regulations to go into effect (except as to one provider, at one clinic).
  • Gonzales v. Carhart upheld the federal ban on so-called “partial birth abortions.” The law contained no exception that allowed doctors to perform the procedure where necessary to protect the woman’s health or life. The Chief Justice joined the opinion that included the (unsubstantiated) suggestion that some significant number of women who have abortions regret having them. (Subsequent research has demonstrated that claim to be false.)
  • McCullen v. Coakley invalidated a law providing buffer zones around abortion clinics. The Chief Justice wrote the opinion.

With that kind of friend, who needs enemies?

And now for Justice Gorsuch. Here is a list of all of the cases and areas of law Justice Gorsuch said he would like to revisit in his first full term on the Court (I started writing this post before Brianne Gorod touched on this point as well, but I have some cases I’d like to add to her examples):

  • In Sessions v. Dimaya, Justice Gorsuch wrote about the “first principles” that led him to reject the existing dividing lines between laws that are subject to the vagueness doctrine and laws that are not.
  • In Jesner v. Arab Bank, Justice Gorsuch wrote that he would reject the Court’s opinion in Sosa v. Alvarez-Machain that federal courts can imply causes of action under the Alien Tort Statute.
  • In Wilson v. Sellers, Justice Gorsuch wrote that the “look-through presumption” announced in Ylst v. Nunnemaker (or at least some versions of it) should be revisited and narrowed.
  • In South Dakota v. Wayfair, Justice Gorsuch joined an opinion overturning National Bellas Hess v. Department of Revenue of Illinois.
  • In Janus v. AFSCME, Justice Gorsuch joined an opinion overturning Abood v. Detroit Board of Education.
  • In Carpenter v. United States, Justice Gorsuch wrote an opinion stating he would like to revisit Katz v. United States. He joined Justice Thomas’s concurrence in Byrd v. United States questioning the same.
  • In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Justice Gorsuch wrote an opinion stating that Employment Division v. Smith was “controversial” (I wonder if he’d revisit that one….).
  • In Sveen v. Mellin, Justice Gorsuch wrote an opinion stating he would like to revisit much of the Court’s contracts clause jurisprudence.
  • In Lucia v. SEC, Justice Gorsuch joined Justice Thomas’s opinion stating that he would like to offer a different definition than the one currently provided by the Court’s cases of who counts as an “officer of the United States.”
  • In Abbott v. Perez, Justice Gorsuch joined Justice Thomas’s opinion stating he would hold that section 2 of the Voting Rights Act does not apply to redistricting decisions (despite many courts holding that it does, and the Supreme Court applying section 2 standard to redistricting laws).

As you can see, Justice Gorsuch loves precedent just as much as the next common-law constitutionalist!  Oh wait....

That list is all from Justice Gorsuch's first full term for the Court. To make the picture more stark, the Court heard 63 cases this past term and issued a decision in 60 of them. In eleven cases, Justice Gorsuch stated he would like to revisit, modify, or overrule, or actually overruled, cases in 10 areas of law.

Susan Collins is free to lie to her constituents. She is also free to willfully ignore the President’s promise to appoint Justices to the Supreme Court who will overturn Roe, and his partnership with organizations whose leaders have argued for the same. She is also free to pretend that nominees who were selected through that process, but managed to have no apparent paper trail and to avoid publicly calling for Roe to be overturned, are truly open books when it comes to abortion.

But that doesn’t mean the rest of us should avoid driving a truck through her ridiculous effort at pretending not to see what is going on.

 @LeahLitman

*I recognize that the governing standard for abortion regulations comes from Planned Parenthood of Southeastern Pennsylvania v. Casey; I’m using Roe as a shorthand because that is the decision that is better known among the general public.

**Planned Parenthood v. Ayotte doesn't count because the Court limited itself to deciding a remedial question about severability.


Birth Control Is Not Abortion

9/7/18  //  Quick Reactions

By Greg Lipper: At his confirmation hearing, Judge Kavanaugh used the phrase “abortion-inducing drugs" while referring to a case he heard on the DC Circuit. This description of the case is at odds with modern science and suggests his hostility to foundational privacy precedents.

Take Care

The (Ir)relevance of parental consent requirements to Garza

9/5/18  //  Quick Reactions

Judge Kavanaugh suggested he was faithfully applying parental consent cases in Garza v. Hargan. He's wrong.

Leah Litman

U.C. Irvine School of Law

Versus Trump: A Two-Level Versus Trump Case

8/30/18  //  Commentary

On this week's episode of Versus Trump, Jason and Charlie talk about a case that fits our podcast on two levels: it's a lawsuit against the Trump Administration about grand jury secrecy, and any decision could impact the Mueller investigation, which is the biggest Versus Trump case of them all. Listen now!

Charlie Gerstein

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Jason Harrow

Equal Citizens