The Supreme Court has stirred controversy with two procedural orders. They revealed much about the state of our political world.
In one case, the Court decided to suspend a Louisiana law that requires doctors performing abortions to be admitted to practice at a hospital. The law could have the effect of eliminating all but one of the clinics and doctors providing abortions.
The factual question was whether three doctors could obtain hospital admission privileges. The state promised to give them 45 days to try, deferring enforcement of the law. It acknowledged that if only one doctors remained, that would not satisfactorily protect women’s health.
In effect, the Court decision lengthened the 45-day period. It did not decide on the law itself, though it will later. Among the five-member Court majority were the four liberal justices and Chief Justice John Roberts.
Justice Brett Kavanaugh was among the four conservatives opposing the suspension, but was alone in providing a written explanation. He took no position on the law, but said that the three doctors should continue performing abortions and make a “good faith effort” to gain hospital privileges in the 45 day window.
If they did not succeed, a stay suspending the law could then allow the Court to review the law itself. In short, he said nothing about supporting the obvious effort to drastically limit abortions.
Two conclusions immediately emerged from the decision, both most likely wrong. One was that Sen. Susan Collins had been fooled when she said Kavanaugh would respect precedent, presumably the Roe v. Wade decision allowing abortions. The other was that Roberts was emerging as the Court’ swing vote.
Abortion advocates would not trust Louisiana’s assurances which Kavanaugh had accepted. Because he was not suspicious, he was complicit. That meant he opposed Roe. Distrusting any statement from those you oppose is how politics works these days.
Collins took him at his word in his dissenting opinion. The media reported that opponents of Kavanaugh’s confirmation had “slammed” her with the obvious intent to weaken her reelection chances.
As for Roberts, as much as we want a new swing vote, he showed his credentials for the title are limited.
In Alabama, a convicted criminal was slated for execution. A Muslim, he asked for an imam to be present. The state refused, saying only its Christian staff chaplain may attend. Otherwise, it claimed, without proof, the event might be unsafe. The state claimed he should have known the rules, though his request for them had been refused.
The Court of Appeals had suspended the execution so that it could hear arguments on both sides. The Supreme Court overruled the lower court and allowed the execution to take place. The five member majority included the five conservatives, including the Chief Justice.
Justice Elena Kagan said the decision was a direct violation of the clause in the Constitution that prevents the government from favoring any single religion or religion itself. She said the state’s reason for its rule should have been examined in court. After the decision, Alabama quickly banned any religious counselor from executions.
Roberts had fallen in line with the conservatives, not on procedure as was the case on abortions, but on a basic constitutional question. That raised a question about the quality of his status as swing justice.
Both decisions could affect millions of people. The Court owed people more than the short, procedural orders, providing little detail and judgment. It left the explanation to the media, which could easily misinterpret the abortion order, making more out of it than justified and while ignoring the true meaning of the religion case.
As a result, people were misled or ill-informed. That undermines democracy. The Court deals with the law, but it also affects the people. It might remember that.