Earlier this week, in a case called Planned Parenthood v. Casey, the Supreme Court in effect upheld Texas’s draconian new restrictions on abortion — a law that effectively outlaws abortions in a huge swath of west Texas. In so doing, it upheld a 5th Circuit court ruling “staying” — preventing from taking effect — a District Court ruling that parts of the law were unconstitutional.
Now, to stay the District Court ruling, the appeals court had to find that allowing that ruling to stand pending appeal would constitute “irreparable harm” to the state of Texas. It also had to find that the stay “”substantially injure the other parties interested in the proceeding” — i.e., pregnant women in Texas.
The appeals-court judge who wrote that court’s ruling, Priscilla Owen, really did find, against both facts and common sense, that the state of Texas would be irreparably harmed if the District Court ruling were allowed to stand while it was being appealed AND that no other parties interested in the proceeding would be substantially injured. Yes, she did. Lawyer/blogger Scott Lemieux comments:
What makes Owen’s opinion remarkable, however, is her justification for the conclusion that temporarily preventing the law from going into effect would constitute “irreparable harm” to the state of Texas. Circuit Court judges are bound by Supreme Court precedent; they cannot create new legal standards on their own. But as one lawblogger notes, the basis for Owen’s conclusion would be embarrassingly feeble if there was any evidence that she was capable of embarrassment. The following is a comprehensive list of the precedents cited by Owen to justify her conclusion:
- A bare assertion from a 1977 solo opinion—not speaking for the court—by then-Associate Justice Rehnquist that “[i]t also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (“It seems”—well, I’m convinced!)
- A solo opinion—again, not speaking for the Court—by Chief Justice Roberts citing the Rehnquist opinion without any further defense.
- That’s it.
This precedential basis would need a lot more heft to merit being called “threadbare.” And it’s even worse than it appears at first glance. First of all, Rehnquist’s opinion applied to a case where at least the statute had already gone into effect, making the argument of “irreparable harm” to the state even weaker as applied to the Texas abortion case, where it had not. And second, there’s a reason that this dictum has never appeared in an actual Supreme Court majority opinion—it doesn’t make any sense. If this “principle” were taken seriously, states would have an unlimited right to enforce unconstitutional laws for as long as the legal challenges take to wend their way through the courts, irrespective of the harm caused to those who rights were violated. This simply cannot be right.
How does Scalia’s counter to Breyer—typically long on belligerence and short on logic—reply to these obvious objections? Why, by merely citing the Rehnquist and Roberts opinions again. So now, the next time a hack Republican judge wants to make a politically expedient decision to deny or vacate an injunction preventing the enforcement of potentially unconstitutional legislation, he or she can now cite four precedents endorsing the same erroneous tautology without any attempt to defend it. It’s a nice con if you can pull it off.
“Because Rehnquist said so.” “Because Roberts said Rehnquist said so.” “Because Scalia said Roberts said Rehnquist said so.” Seriously, that’s an actual sitting appeals-court judge’s idea of how precedent works. IANAL, but I’ve examined enough SCOTUS cases to know that that isn’t law, that’s wanking: The string may get longer, but because no case majority opinion is ever cited, the amount of actual legal value therein starts at zero and stays there.
So much for the rule of law. And I disagree with Lemieux that this is merely a con. I think it’s straight-up dictatorship: These people have decided that they’re going to overturn Roe v. Wade by hook or by crook and meddle deeply into the medical affairs of women without legal or constitutional justification for doing so, and that’s that. If you were kidding yourself about that before, please stop.