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Calm down


The Supreme Court is not telegraphing its intent to overturn Roe v Wade, and it has not approved the draconian measures recently adopted in Texas. The ruling of the court in declining to intervene was on procedural grounds that the application before it was either premature or procedurally defective in some way. While the dissenters were vociferous in their individual reasoning, all of the arguments for granting the petition to intervene were based on the premise that the underlying law under attack was really, really atrocious and somebody ought to do something about it right now. None address the procedural obstacles presented to the court’s intervention.

The Supreme Court is a court of last resort. The usual case comes to it after having been heard and decided in a federal trial court, appealed to a circuit court of appeals, and then brought before the Supreme Court for final review, or having been heard and decided in a state trial court, appealed within the state to the highest court there, and then brought to the Supreme Court for review of federal constitutional issues.

There are close to 700 Article III federal trial judges – not counting magistrates and bankruptcy judges – and almost 180 appellate judges in the 13 circuit courts of appeal. The vast majority of all federal cases are resolved completely within the system of trial and circuit judges. Only a handful of cases are selected for appeal to the Supreme Court, usually being cases where there is a difference of opinion among the circuit courts and an “umpire” decision is required.

A handful of cases reach the court on appeal from supreme courts of various states. Where a constitutional issue is involved, a case that is handled entirely within a given state may be taken to the Supreme Court after a decision by the highest court within the state on a writ of certiorari.

Very rarely, the court will hear a case for the first time at the Supreme Court level, without requiring that it come up through the appellate system or be tried to completion within the state system. These are called cases of original jurisdiction, and the power is delineated in Section 2 of Article III. This section includes only cases affecting ambassadors or the like and those in which a state is a party. The court has held that the limitation upon its authority to take original jurisdiction cases cannot be expanded by legislation.

The court could have intervened in the Texas abortion law case, of course, upon the grounds that it is the “supreme” court and may do as it damn well pleases. But it rarely does so, and then only on extreme situations – witness, the Gore v Bush intervention and decision following the 2000 election.

This means that the majority of the court does have a point in the Texas abortion law case. A fundamental requirement for judicial action is the existence of a “case” between actual, existing “parties” that needs to be “decided.” Our entire system of justice is based upon this premise.

In the Texas situation, there was no case – yet. There is no mention on the record before the Supreme Court that anybody had actually sued anybody under the Texas law, or advanced any specific threats to do so, sufficient to support a specific restraining order. There is no target defendant in the case to restrain, nor any specific aggrieved party to protect – yet. The legislature passed a law, but no one has acted upon that law – yet. At least no one within the record of the proceedings before the Supreme Court.

This may look like the long way around and not be a slam­-bang, bring down the curtain once and for all result the proponents wanted from the Supreme Court, but it’s the way these things are supposed to go as the trial court undertakes the business of building a record to support an eventual ruling on the merits – one way or the other – that will form the basis for appellate action through the courts and to the Supreme Court if need be.

The plain fact is that this law may never see the inside of a federal court. It is so obviously defective that it may well be eviscerated and buried by state court action long before any federal court is called upon to rule. In fact, the process has already started. The New York Times reports that a Texas state court trial judge has issued a temporary restraining order restraining a specific anti-abortion group from filing a threatened action against a specific Planned Parenthood office under the new law, placing everything on hold until September 17, 2021, to allow time for briefing and the development of a judicial record.

So: calm down. The law is awful as drafted and should not survive judicial scrutiny when it is properly brought before a proper court, with proper parties, and the existence of actual conduct to examine and rule upon.

Be patient. Give the system a chance.

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