By Dave Andrusko
Moving forward, the answers to one of the key questions posed by the three moderators at Tuesday 4th debate featuring 12 Democrats running for President is very much worth reading. (You can read the entire transcript here.)
Immediately following the question about “reproductive rights,” CNN’s Erin Burnett asked
The Supreme Court is currently made up of five Republican-appointed justices and four appointed by Democrats. The court just announced it will hear arguments in a case challenging some abortion rights.
Vice President Biden, the Constitution does not specify the number of justices that serve on the Supreme Court. If Roe v. Wade is overturned on your watch and you can’t pass legislation in Congress, would you seek to add justices to the Supreme Court to protect women’s reproductive rights?
Subsequently she asked Sen. Elizabeth Warren more specifically
Senator Warren, would you consider adding more justices to the Supreme Court to protect Roe v. Wade?
The answers of those asked to respond varied, but all were cautious; no doubt they were leery about admitting in public to be in support of advancing something so blatantly political.
At least for now. Stay tuned.
I thought of the candidates’ exchange when I read an op-ed in USA Today Thursday. The gist of Gabe Roth’s loaded and highly tendentious argument was that unless the justices revealed who had voted to hear the case challenging Louisiana’s law requiring abortionists to have admitting privileges at a local hospital, the High Court is not being “transparent” and is acting “political.”
But why? If they choose, justices are free (for reasons of their own) to say they voted for or against granting certiorari. However, they are not compelled to do so, which Roth demands of those who agreed to grant certiorari in June Medical Services, et al v. Gee.
In reversing the district judge’s decision, 5th Circuit Appeals Court Judges Jerry Smith and Edith Clement found the Louisiana law does not impose the same “substantial burden” on women as did the Texas law in the 2016 case of Whole Woman’s Health.
According to the majority opinion written by Judge Smith, the district court overlooked that the facts of the Louisiana case “are remarkably different from those” that invalidated the Texas law. The court also ruled that the Louisiana law does not “impose a substantial burden on a large fraction of women” as the Texas law did.
Judge Smith wrote
The court overlooked that the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in WWH [Whole Woman’s Health]. Here, unlike in Texas, the Act does not impose a substantial burden on a large fraction of women under WWH and other controlling Supreme Court authority. Careful review of the record reveals stark differences between the record before us and that which the Court considered in WWH.
Almost all Texas hospitals required that for a doctor to maintain privileges there, he or she had to admit a minimum number of patients annually. Few Louisiana hospitals make that demand. Because Texas doctors could not gain privileges, all but 8 of 40 clinics closed. Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence that any of the clinics will close as a result of the Act. In Texas, the number of women forced to drive over 150 miles increased by 350%. Driving distances will not increase in Louisiana. Unlike the record in Louisiana, the record in Texas reflected no benefits from the legislation.
Finally, because of the closures, the remaining Texas clinics would have been overwhelmed, burdening every woman seeking an abortion. In Louisiana, however, the cessation of one doctor’s practice will affect, at most, only 30% of women, and even then not substantially. That is only a summary. As we explain in detail, other facts underscore how dramatically less the impact is in Louisiana than in Texas. Because the Louisiana Act passes muster even under the stringent requirements of WWH and the other Supreme Court decisions by which we are strictly bound, we reverse and render a judgment of dismissal.
But because the Supreme Court agreed to hear the case for and against Louisiana’s 2014 Unsafe Abortion Protection Act, it must be (to quote Roth) “an obvious, politically minded grant,” and, therefore, Chief Justice John Roberts “can no longer spout the institutional line and tell us with a straight face that he and his colleagues are beholden to no political ideology.”
The truth is that we do not know how many justices, whether nominated by Republican presidents or by Democrat presidents, voted for certiorari, except that there had to be a minimum of four. Roth assumes they were justices nominated by Republican president, but is speculation, at best, and, may, in fact, be completely wrong.
Democrats keep insisting—when they anticipate the justices not coming down with the decision they favor—that the Court is acting in a manner that makes the public distrust it. But is it not fair to conclude that with their shots at the impartiality of the justices and by floating plans to enlarge the size of the Court, Democrats are running hell-bent to undermine confidence in the Court?
Moreover, to buckle to the Democrats’ mounting assault on the Court’s independence would be the consummate act of acting “political.”
Democrats’ attacks intending to delegitimize the Supreme Court can be seen as the flip-side of their campaign to legitimize each and every abortion up to birth and (still to be officially determined) after birth.
In both cases, it’s all politics.