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OPINION | JOHN BRUMMETT: Texas trickery gets a wink

by John Brummett | September 7, 2021 at 4:19 a.m.

Ruth Bader Ginsburg died, allowing Texas to get away with pulling a fast one.

Just before midnight last Wednesday, the conservatized U.S. Supreme Court gave Texas the go-ahead for now on a sleight of hand designed to end abortion in that state and offer a nationwide trickery template.

The Texas tactic seeks to evade the judicial review that has been an American tenet since Marbury v. Madison.

For now, the right-wing majority on the Supreme Court for which conservatives have long salivated is saying--after a late-night "shadow docket" confab without pleadings or oral arguments or a court ruling to review--for Texas to go right ahead.

The Texas law, which took effect Wednesday and set off the legal frenzy, bans abortions after heartbeat detection, which is usually about six weeks, at which point many women don't know they're pregnant. It makes no decency exception for rape or incest.

But, cleverly, the law doesn't empower the state to enforce the ban as a matter of criminality. It establishes violation by a provider as a civil matter. It offers state taxpayer money to any Texan who thinks he's aware of the performance in the state of a post-heartbeat abortion if that person brings a lawsuit and wins. It bars the defendant from collecting attorneys' fees even if successful against a frivolous action.

Clearly the purposes are to terrorize providers out of doing any abortions at all and to avoid any legal review of the state since the state is not doing any enforcing.

Any legal action based on the law amounts only to free citizens exercising their right to sue, you see. The state is not paying anyone to sue, you see. It merely is reimbursing anyone successfully suing for the cause of justice, you see.

Five right-wing justices--Clarence Thomas of George H.W. Bush nomination, Samuel Alito of George W. Bush nomination and the three Trumpers known as Neil Gorsuch, Brett Kavanaugh and Amy Barrett--voted near the stroke of midnight to let Texas go ahead with the proviso that the greater question of basic legality likely would get decided by another process later.

They voted to put abortion providers out of business in Texas on a law they were not prepared to call legal.

In a one-paragraph statement, they said there were "serious questions regarding the constitutionality of the law," but, because the law posed a new kind of process, they simply couldn't figure out how at this point to stop the law from going into effect.

Three liberal justices--Stephen Breyer of Bill Clinton appointment and Sonia Sotomayor and Elena Kagan of Barack Obama nomination--dissented strongly that the majority action was a procedural and constitutional outrage.

One justice, the Bush II-nominated chief, John Roberts, sided with the three liberal justices on the simple and compelling procedural point that the question posed a different kind of law not previously contemplated and therefore was ideal for a stay until the court ruled on the validity of the novel tactic.

As ever, I applaud the political middle. You pretty much knew how the five right-wingers would vote. You knew for certain how the three left-wingers would vote. What we need judicially and politically are more people like Roberts, aligned with one side usually but thoughtful and sensible enough to go the other way from time to time in the interest of logic and fairness.

I wish we could get Supreme Court justices who were simply standout lawyers, not products of the federal appeals court farm system whose politics were comfortably known. But neither side would stand for that. Supreme Court nominations are now treated as legislative votes.

And, yes, this court-sanctioned midnight assault on Roe v. Wade got done by a 5-to-4 vote only because Ginsburg breathed her last and Barrett replaced her.

But each of the five votes was decisive. So, this case tells you exactly why people behaved so frantically over Kavanaugh's nomination. The liberals brought forth a nervous and beleaguered woman to try to stop him. The conservatives ran a sham FBI background check to pretend that it had looked at all charges of inappropriate behavior against Kavanaugh.

This case also tells you why Mitch McConnell wouldn't let Obama nominate the replacement for Antonin Scalia though he had a year left in office to do so under the Constitution. It was because Merrick Garland, now Joe Biden's attorney general, might not have voted late Wednesday night to wink at the Texas trickery. But Gorsuch winked.

People have been working for decades for the Supreme Court they got the other night.

It would be fairer, though, if the new Supreme Court majority would reward its political base by ruling on the issue--on Roe v. Wade and whether and how to restrict it--rather than permitting interim trickery subject to overturn later.

The issue was not abortion, but that Texas was trying to pull a fast one. And the five justices ruled in favor of the fast one.

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected] Read his @johnbrummett Twitter feed.

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