Perhaps Kavanaugh Is... A "Non-Activist" Conservative RE-actionary.

A long-term friend of the blog asked, in comments, about the pair of Planned Parenthood certiorari denials yesterday. I decided to expand on my analysis / answer (the short version of which may be found in the comments, to the last one). [My vintage 2015-16 era related thoughts may be found here and here. Thus, the graphic at right is derived from some older ones.] On to it, then:

First, here is Justice Thomas -- in a four page PDF, complaining that the Supremes didn't vote to take the twin cases (only four votes are required to place a case on the docket for ultimate argument -- Thomas, Alito and Gorsuch said they wanted to take these cases). There is no published opinion denying certiorari -- just the fact of denial. Since it takes four, it seems Thomas was unable to attract the votes of the Chief Justice -- Roberts (no surprise there, per my comment of yesterday). But he was also unable to persuade. . . (what is widely presumed to be his fellow traveler) Kavanaugh.

Some conservative watchers have suggested that Kavanaugh didn't want to weigh in at all (preposterously, I think), since he hadn't fully prepped (by reading. . . the petitions?!), or. . . because he didn't want his first appearance to be that of a anti-abortion activist Justice. I think that's a canard. [I think Kavanaugh will happily vote to take a case that challenges Roe v. Wade.]

No, I think he didn't vote to take the case. . . precisely because deciding it. . . will not help overturn Roe. That is, to reach the merits of these supposed 1983 private right of action cases, the Justices will have to expand, not contract -- the federal right to sue for damages, when a core principle in the Constitution is. . . violated. That, for the ideologue Kavanaugh, is a bridge too far. He won't want to go about creating NEW federal rights to sue, in order to get at what he sees as the wrongly-decided Roe case. And these cases don't advantageously-frame his desired "definitive" debate -- on right to life / abortion rights, in any event. So, he decided to wait -- and hope for a better case, to bubble up. He and Gorsuch are both relative youngsters, in Court years, so they can wait.

That's my "expanded thoughts" take. But as I close, I will quote Thomas, in dissent, just to show he no longer is anything other than a naked activist -- willing to trample judicial parsimony, in order to get at a political goal he wants to achieve:

. . . .So what explains the Court’s refusal to do its job here? [Editorial comment: I gather Thomas thinks that "job" is activism, for a particular would-be religious ideology. Disgusting.] I suspect it has something to do with the fact that some respondents in these cases are named “Planned Parenthood". . . .

His above comment is preposterous, on its face. This is. . . odious, naked politicking -- in the Supreme Court record. Justice Thomas beclowns himself (again).

More and more, I honestly believe, for all his other faults, the Chief Justice is mortified by such debasements -- of the Court he now presides over. Oddly, Roberts now is likely the swing vote on many issues (i.e., the new Kennedy). And while that clearly portends a shift rightward, in the Court, I do think Roberts thinks more and more of his legacy -- as he speaks out forcefully against 45's nonsense about supposed "Obama judges".

The Chief may yet surprise us, with some true conservatism -- doing less when less is. . . warranted. Onward, smiling right back, at this clear morning. . . .

नमस्ते

Supremes Issue Temporary Block: Louisiana Law -- A Harbinger?

I won't get too far out in front of this, but I too do read some tea leaves, here. The Gray Lady seems to be doing so, as well.

More specifically, my bet -- and that of many other court watchers -- would be that Justice Kennedy's views will lead him to join a 5-3 majority opinion in striking the Texas law argued this past week. We shall see -- but here is the bit:

. . . .The Supreme Court on Friday temporarily blocked a Louisiana law that its opponents say would leave the state with only one abortion clinic. The court gave no reasons, though it did say that its order was “consistent with” one last June that blocked part of a Texas abortion law.

The move came two days after the Supreme Court heard arguments in the Texas case, and abortion rights groups said they hoped that the development Friday was a sign that they had secured five votes to strike down the Texas law. . . .

The Louisiana law, enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. A trial judge blocked the law, saying that such doctors were often unable to obtain admitting privileges for reasons unrelated to their competence and that the law created an undue burden on a woman’s constitutional right to abortion.

On Feb. 22, the federal appeals court in New Orleans stayed that ruling, allowing the law to go into effect. . . .

And tonight, the Supremes stopped the Louisiana law from going into effect, at least temporarily, until the case is heard there. All of this is sort of like scaling a mountain you've climbed before, very near-by the unconquered peak you are interested in seeing the apex of, and then shining a powerful beacon, onto the unconquered mountain's peak, from the one you've just scaled, once more. We shall see. G'night, one and all. . . smile. . .