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In this follow up episode, Nia and Aughie discuss two recent controversial SCOTUS shadow docket decisions, the Evictions Moratorium case and the Texas Abortion case.
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Shadow Docket Follow Up, Fall 2021
Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: I'm good. Listeners, I'm particularly good because we're doing a follow-up episode of the podcast, and we're following up on what topic, Nia?
N. Rodgers: The shadow docket. You see last week when you talked about it, you were all calm and you were the [inaudible 00:00:30] and bladder. Well, not quite like that because you don't really talk like that. You have a lot more intonation. But you did not in any way tell me that what it actually is, should be known as the shenanigans docket, because here lately has set fire to everything. I get that you were saying part of what the shadow docket was about was saying to the lower courts, we cannot be bothered to overturn this thing because you have annoyed us so much. Just do your jobs and send us stuff that we actually need to work on. But now that's not where we are. This has turned into a saying this season.
J. Aughenbaugh: This has turned into a thing, and for listeners who have committed the cardinal sin of not listening to the [inaudible 00:01:34]
N. Rodgers: To the previous episode.
J. Aughenbaugh: Basically again, conceptually the shadow docket makes reference to a range of, okay, this is a direct quote from the scholar Willie Body, who coined the term shadow docket.
N. Rodgers: Right. Because it's not an official, like they don't have the shadow docket of the Supreme Court of the United States.
J. Aughenbaugh: If you go to the Supreme Court website and type in shadow docket, nothing's going to pop up.
N. Rodgers: But the shadow docket is, "A range of orders and summary decisions that defy the Supreme Court's normal procedural regularity. As we previously discussed, the shadow docket has existed for most of the court's history. There are any number of motions that are filed with the Supreme Court to overturn a death penalty sentence, for instance, that the court just summarily dismisses.
N. Rodgers: You said approximately 9,000 things come up before the court.
J. Aughenbaugh: They can they can hear all of this. They're not going to get written briefs and have oral arguments on everything. Most of what the court does falls onto the shadow docket. What became an issue, particularly during the Trump administration, is the frequency in which the Trump administration went to the Supreme Court and said, "There's a lower court here in the United States that has issued a ruling that stops one of our policies from ever being implemented." What shocked Supreme Court observers and scholars is the frequency in which the Supreme Court would go ahead and issue an order either agreeing with the Trump administration or disagreeing with the Trump administration, right?
N. Rodgers: Right.
J. Aughenbaugh: Listeners, Nia and I did the previous podcast episode, just to go ahead and talk about this, if you will, phenomenon that was getting more attention. What we didn't know when we recorded the episode was it would become huge.
N. Rodgers: It would become a dumpster fire. It would become a thing where now everybody walking by says, "Whoa, that thing is on fire. What is that? That's the shadow docket." When we recorded and for listeners we will be honest with you, we recorded that in the summer, in the gentler time, when this had not yet turned into or seeing where people were picketing and yelling and calling other people names. This is really gone.
J. Aughenbaugh: We now have United States Congressional hearings, just about the shadow docket.
N. Rodgers: Exactly. Should they be allowed to do that? Well, they've been doing it for 200 years. Because I remember asking you that, is this a new thing? You were like, "No, it's been going on the whole time." But part of that is right because of what they have decided with the shadow docket in the last little bit here. Instead of the normal innocuous, we are not going to overturn this person's death penalty; we were going to quietly overturn this other thing and just leave it alone or whatever. Instead of that, we've gotten a couple of cases here like there have been what you would think would have ended up in the regular system. Where you get the long drawn out opinions and all is set. A side note; there are no opinions in the shadow docket. Is that correct?
J. Aughenbaugh: Well, there can be, but they're typically not the full-blown explanations of why we did X or why we decided against Y.
N. Rodgers: They're like the too long didn't read ones, TLDRs
J. Aughenbaugh: Again for our listeners who don't really know how the Supreme Court operates, typically, every year the Supreme Court gets anywhere 8,000 and 9,000 appeals. We discussed this in the summer of SCOTUS, the summer of 2020. Basically when the Supreme Court decides to hear a case, then they schedule a date for the oral arguments. They ask both parties to submit written briefs. That process alone, typically takes at minimum 3-4 months.
N. Rodgers: Then there are clerks scurry around writing things and finding precedent and doing all that stuff.
J. Aughenbaugh: They write legal memorandums for the justice before the oral argument. They have oral arguments in the justices meeting and conference, they take a vote, they assign opinions. Then it takes 2, 3, 4, or 5 months in some cases to write opinions. Then the court announces its decision with the opinions. But with the shadow docket, a majority of the court could simply issue a ruling that says, we're going to stop a lower federal court ruling. Or as we will discuss here in just a few moments, we are not going to overturn a controversial state law.
N. Rodgers: XOXO, the Supreme Court. It doesn't have to be lengthy, and in fact is not going to be a lengthy thing. Will there be dissents?
J. Aughenbaugh: Sometimes with rulings in the shadow docket, there are dissents. In fact, if you're going to get opinions on cases in the shadow docket, that's usually where you get the opinions, because the justices who are not in the majority are like, "We should not have done this." Or in the case, again, that we'll discuss in just a few moments, the infamous Texas abortion law, the dissenters are like, "We should have done something.
N. Rodgers: We should have done something. We should not have done something. The dissenters get to say this is a bad idea. What is it in the movie called I Have a Bad Feeling About This.
J. Aughenbaugh: Which usually happens about the one-hour mark of most Hollywood thrillers, where some character says, "I have a bad feeling about this," which is the most redundant thing that is said in that movie's dialogue.
N. Rodgers: We all can see that it's a bad thing. We know what's about to happen. Don't open the door to the basement. It's not going to end well. Let's talk about these couple of cases.
J. Aughenbaugh: The first one actually happened at the end of August. The name of the case.
N. Rodgers: August 2021 for future us who are listening back to this in 20 years.
J. Aughenbaugh: Yeah, August 26th, 2021. The case was the Alabama Association of Realtors versus the Department of Health and Human Services. The Supreme Court held in a six to three vote that the court was going to lift a stay of a district court injunction. Basically, the court said, a district court ruling could go into effect that concluded that if the Realtors' lawsuit ever went to trial, Health and Human Services, the federal government would likely lose the case. Now what was at issue in this case, again was.
N. Rodgers: Is this the eviction moratorium?
J. Aughenbaugh: This was the eviction moratorium.
N. Rodgers: Okay.
J. Aughenbaugh: A unit of Health and Human Services is the Centers for Disease Control.
N. Rodgers: Otherwise known as the CDC.
J. Aughenbaugh: The CDC. The CDC has been doing a lot of stuff here in roughly the last 18 months before COVID-19.
N. Rodgers: People for most of my lifetime would not have been able to tell you what CDC stands for.
J. Aughenbaugh: Yes.
N. Rodgers: Because they had not had any dealings with the CDC, the Center for Disease Control, and now, dude they are in the news all day, every day because they are the frontline dealing with the pandemic.
J. Aughenbaugh: That's right.
N. Rodgers: Which we are currently still in.
J. Aughenbaugh: Yes. To give a little bit of historical background about the eviction moratorium; the Trump administration, through the CDC, issued an eviction moratorium. The Congress passed a law that extended that eviction moratorium for a short period of time. The Trump administration continued it through the end of 2020. When the Biden administration took office, it continued the Trump administration's eviction moratorium, but that ended at the end of June 2021. Now, in June, the Supreme Court was asked to rule on whether or not the eviction moratorium was legal. In other words, did the CDC have the statutory authority to issue the eviction moratorium? The Supreme Court issued a shadow docket ruling that allowed that eviction moratorium to continue because it was going to end within a month. In the key vote was just as Brett Kavanaugh, who actually wrote a concurring opinion where he said, "On the merits, I think the CDC would lose, but since the eviction moratorium is going to end in a month, I'm going to vote to let the eviction moratorium continue." But he said a very clear message.
N. Rodgers: Basically, what he was saying was if we follow the 3-4 month process, this would already be over. The point would be moot, which if you go back to the summer of SCOTUS we talked about what happens when a point becomes moot then the court does like, "Okay, well, there's no reason to even talking about this now."
J. Aughenbaugh: Yeah. The issue is no longer a case.
N. Rodgers: He was basically saying by the time we get around to this, it should no longer be a case. But if it were going to be a case, CDC would lose because I don't believe they have the legal power to have an eviction moratorium.
J. Aughenbaugh: Yes. Almost every legal scholar who read the previous ruling before the Alabama Realtors Association case basically interpreted what the Supreme Court did as sending a very clear message to the political branches of the federal government, and here the message was this. If those branches want an eviction moratorium, it would have to be which branch that created the policy? Congress.
N. Rodgers: Right, they would have to grant these agents stay.
J. Aughenbaugh: The authority to issue an eviction moratorium in response to a public health crisis. The Biden administration initially interpreted that previous shadow docket rolling as putting handcuffs on the administration. But members of Congress pushed back and said the Biden administration has to do something. The Biden administration changed course and issued a new eviction moratorium. The new eviction moratorium focused on the parts of the country that were already suffering the effects of the Delta variant of COVID-19. But at that point, 90 percent of the country was suffering the effects of the Delta variant.
N. Rodgers: Well, pinning into something like that, that's a moving target like that constantly is going to be changing which means that it local people trying to figure out whether they have to comply with an eviction notice or not. What do you suppose to look up at your local health department and figure out whether you're in the red zone or the yellow zone or the green zone, and that's going to change day to day. That's just an impossible.
J. Aughenbaugh: That's an impossible standard for people to follow in regards to, if you will, a law. But it's also the thing that federal court judges typically don't like.
N. Rodgers: What's too squishy?
J. Aughenbaugh: They want a very clear standard.
N. Rodgers: Right.
J. Aughenbaugh: Because judges believe that law sets behavioral norms, and if the standard is always changing, you don't have a clear behavioral norm.
N. Rodgers: Well, and you don't have consistent application of the law, which is the other part that judges really like is to be able to say from case to case, what's the consistence.
J. Aughenbaugh: Yeah.
N. Rodgers: How can I consistently apply the law here?
J. Aughenbaugh: Though, on August 26th, six justices issued a per curiam opinion. Now a per curiam opinion does not have a stated justice who wrote the opinion. Per curiam means basically the voice of the body.
N. Rodgers: Part of the majority.
J. Aughenbaugh: Part of the majority. But in the per curiam opinion, six of the justices, and by the way, it was all six of the so-called conservatives.
N. Rodgers: Right, of course.
J. Aughenbaugh: This is one of the complaints about how the Supreme Court has been using the shadow docket. It's usually five or six of the conservative justices that are issuing the ruling. It's coming across as partisan, but they basically went ahead and said, if this case ever went to trial, we suspect that on the merits, the CDC would lose. The CDC's authorizing statute does not mention that agency having the authority to issue an eviction moratorium.
N. Rodgers: Which they made clear that Congress could fix.
J. Aughenbaugh: Yes.
N. Rodgers: By passing a law, they regularly do that. The SCOTUS they regularly say, "But if you wanted this to pass master, here's how you would make that happen.
J. Aughenbaugh: Yes.
N. Rodgers: Congress could make a law which would give the authorities to the CDC to control a moratorium eviction in cases of whatever and Congress could go forth and do that, except that Congress, of course, is one of the most partisan locked bodies on the planet.
J. Aughenbaugh: Yeah, it's so hyper-partisan right now, and truth be told.
N. Rodgers: Yeah, a dinner we today me and Putin would go better than what happens in Congress right now most of the time. I'm just here to say I'm not a fan of Mr. Putin just so just you know.
J. Aughenbaugh: Yeah, I mean, you have a situation to where Congress has the constitutional authority. Congress could go ahead and say that in eviction moratorium, it could be a toll of the CDC because of the commerce clause authority.
N. Rodgers: Public health across interstate.
J. Aughenbaugh: Yeah. Because what goes on in one state concerning the pandemic could have an economic impact on surrounding states or across the country, right?
N. Rodgers: Right. Even though public health is generally in the purview of the states.
J. Aughenbaugh: States.
N. Rodgers: In this is particular instance, they could give that power, but they haven't.
J. Aughenbaugh: But Congress hasn't. Three justices in the dissent joined Justice Breyer's dissenting opinion.
N. Rodgers: So Breyer, Sotomayor, and Kagan.
J. Aughenbaugh: That's right.
N. Rodgers: Okay.
J. Aughenbaugh: They level two criticisms about the Supreme Court's decision in this case. One, they would have deferred to the expertise of the CDC. Or two, they would have allowed the moratorium to go through and they would have had the Supreme Court to follow its normal process on hearing a case on its merits.
N. Rodgers: Well, and then decided for real forever. Instead of this weird place where from the shadow docket people will think that it wasn't fully vetted, that it wasn't fully heard, because it didn't go through the process you just previously mentioned of the 4-6 month process of hearings and briefs.
J. Aughenbaugh: Yeah, Nia comes across as a temporary ruling, right?
N. Rodgers: Right. Comes across as a band-aid or a piece of tape across it.
J. Aughenbaugh: Yeah.
N. Rodgers: A door frame which isn't going to hold.
J. Aughenbaugh: Yeah. Hey, I have a correct window and I don't know when the window repair folks are going to come out. I'm going to go ahead and pull out some [inaudible 00:20:58].
N. Rodgers: Some dock tape.
J. Aughenbaugh: Pull electrical tape, and I hope that no bad weather actually occurs until the window repair people come out and fix my damn window. That was in August.
N. Rodgers: But in reality that shadow docket ruling is a ruling.
J. Aughenbaugh: Yes.
N. Rodgers: It's just that it's not satisfying to the people who wanted the process to be longer and more involved so that they could argue more about it.
J. Aughenbaugh: Nia, there are two critiques in general of the shadow docket rulings. One is on the effect on policy. The parties in a case, partisans are like, we don't like the outcome because it affects policy in this regard. The second gets at what you just mentioned. This is a short-term temporary ruling that doesn't have the effect of your standard on the merits ruling that we get with the normal Supreme Court process. It's less transparent. Mind you, the Supreme Court is not the most transparent federal government institutions in the first place. But the second criticism is more of an institutional democratic, small d, criticism. This is a government institution that's issuing a ruling that could affect, I mean, with the eviction moratorium we're talking about millions of renters and millions of people who own rental properties.
N. Rodgers: Right. It's a complex issue and it feels like it didn't get fully pulled apart.
J. Aughenbaugh: Yeah, the full discussion, the full debate.
N. Rodgers: The way you get in a full ruling where you get all the concurrencies and all the dissents and all the legal questions that get pulled apart in a full hearing.
J. Aughenbaugh: It really undercuts the court's legitimacy.
N. Rodgers: Yeah.
J. Aughenbaugh: Because we typically believe that when the Supreme Court issues a ruling, nine very smart people have reflected on these frequently complex legal and political issues.
N. Rodgers: Well, and we'd like to believe they've done research and they've thought about it and they've talked about it, and they've had these long midnight conversations and all that. I don't know if that's really what happens, but we like to believe that's what happens. This doesn't have that feel. By the same token, it's still a ruling and it still holds. Just because I don't like it doesn't mean or I don't like the way it was done. I have lots of opinions and feelings about this particular case anyway because it's nuanced, it's complex.
J. Aughenbaugh: Yeah. You and I have talked off recording about the eviction moratorium. Both you and I as is our wants, again, look at the title of the podcast, civil discourse, we're somewhat torn because we don't want people to get a victim because they can't pay their rent. On the other hand, a lot of rental properties are not owned by big corporations that can withstand months of not receiving revenue.
N. Rodgers: Exactly.
J. Aughenbaugh: A lot of rental properties are owned by small businesses or people who own rental properties as a way to make some extra cash.
N. Rodgers: Right.
J. Aughenbaugh: If they don't get the rent they will lose the property because they can't continue to pay the mortgage or pay the taxes or pay the maintenance upkeep, etc.
N. Rodgers: I worry about that in terms of wealth building for those smaller owners.
J. Aughenbaugh: Yes.
N. Rodgers: Because that's wealth building that they then pass on to the next generation, and especially in communities of color, that's enormous. That's a huge way that those communities can improve their children's lives is to hand them over some wealth in terms of asset. Yeah, it's complicated. I don't want to see people booted on the street, but by the same token, I don't want to see mom and pop operations lose their assets.
J. Aughenbaugh: Yeah.
N. Rodgers: I also think, part of what we have here is there is the emotional reaction to people being made homeless, which I would go on the record saying, no one wants, no one wants to see people evicted, not Republicans, not Democrats, not the worst people among us of either party want to see people living on the street or living in their car. That's not just not a thing that I think the vast majority of Americans want for anybody. It's not like that.
J. Aughenbaugh: Yeah.
N. Rodgers: But it plucks your heart strings in ways that makes it complicated for you to have a discussion about it in what you were talking about in a civil way.
J. Aughenbaugh: Yeah. The institutionalists than me, it goes back to the concurring opinion that Brett Kavanaugh wrote, Justice Kavanaugh wrote in the previous case about the eviction moratorium. He said a very clear message to the other institutions of the federal government.
N. Rodgers: You could fix this.
J. Aughenbaugh: You need to fix this.
N. Rodgers: Right.
J. Aughenbaugh: Because if you don't, more than likely this body is going to uphold the rule of law. We're going to uphold the rule of law and you guys can go ahead and blame us. But at the end of the day, in our separation of powers arrangement, the two branches that have the authority to do something about it are the Congress and the President, and the Congress hasn't given the president the authority to do the eviction moratorium.
N. Rodgers: I was going to say and we thought that was bad. We were, like oh, this shadow docket thing, we need to think about this.
J. Aughenbaugh: Yeah.
N. Rodgers: Then the Justices said, pulled our beer. We have something else we'd like to talk to you about.
J. Aughenbaugh: I'm not even entirely sure the justices said that. The state of Texas said that.
N. Rodgers: No, okay.
J. Aughenbaugh: In the Supreme Court, justices are like, "Do we have to really drink this beer?"
N. Rodgers: I'm just going to say that's our abortion case. What's the name of that? Wait, first of all, let me caveat, Aggie and I are not going to discuss the merits or non-merits of the question of abortion.
J. Aughenbaugh: Yeah.
N. Rodgers: Because that is beyond the scope of this podcast. We are not going to have that discussion here. There are lots of feelings on all sides and we're not here to talk about that. What we're talking about is the ruling in this case, not the underpinning ethical questions.
J. Aughenbaugh: Or the merits, etc.
N. Rodgers: Involved in women's reproductive health because like I said, that's not our scope.
J. Aughenbaugh: Yeah. The reason why we're talking about the Texas abortion law case, and it was a Texas law SB8.
N. Rodgers: Eight, it's pretty early in their.
J. Aughenbaugh: Their legislative term. Yes.
N. Rodgers: For anybody who doesn't quick aside, house bill, HB, Senate bill SB. House bills and Senate bills are numbered consecutively in a new term of either the state general assembly or in the case of Congress, which is why you see them numbered in this weird way. HB 2,486 means that is the 2,486th bill to be presented to the House of Representatives. In this case, SB8, eight being a low number, I'm guessing one was their budget probably or something like that.
J. Aughenbaugh: Yeah. Typically, that's the case.
N. Rodgers: It tells you, also the importance level that a group has put on that numerically if they come out of the gate pushing.
J. Aughenbaugh: Yeah. It was submitted early on in the Texas legislative session.
N. Rodgers: It's intent is to get it out there. That's just an aside for the numbering, not important to this ruling.
J. Aughenbaugh: The Supreme Court's ruling.
N. Rodgers: The name of the case.
J. Aughenbaugh: The name of the case is Whole Woman's Health versus Jackson.
N. Rodgers: Okay. I will link to that.
J. Aughenbaugh: The Supreme Court's ruling came out on Thursday, September 9th, late in the evening.
N. Rodgers: Remember Nixon with his midnight firings.
J. Aughenbaugh: Yes.
N. Rodgers: This is like a midnight ruling. Because they don't meet on Fridays, let's put it out and then we'll be gone for the weekend and maybe people will forget by Monday.
J. Aughenbaugh: Well, the Supreme Court, when it's in session, will meet on Fridays because that's usually when they do one of their weekly conference dates. But right now the Supreme Court's on furlough. They don't come back until the last week of September to have their big conference.
N. Rodgers: Oh, that's right, the first Monday in October.
J. Aughenbaugh: October is when they have their first set of oral arguments.
N. Rodgers: There's rather famous book titled that, isn't there?
J. Aughenbaugh: Yes, 1st Monday of October. I have to admit when I said the phrase late in the evening, I've thought about the old Paul Simon song where he was talking about late in the evening and the city of New York. Then he talks about all the shenanigans that go on and New York City late in the evening. Anyways, we digress.
N. Rodgers: We do a little bit, sorry.
J. Aughenbaugh: Yes. The Texas law banned abortions after the sixth week in a woman's pregnancy. That's particularly problematic in regards to the Supreme Court precedent. Because according to the Supreme Court's ruling on Planned Parenthood versus Casey, any law or regulation that places an undue burden, and that's the standard undue burden on a woman's right to choose is unconstitutional.
N. Rodgers: Yeah. Most women do not know that they are pregnant within six weeks of conception.
J. Aughenbaugh: Yes. Most studies that I'm aware of identify it typically takes most women at least eight if not 12 weeks, right?
N. Rodgers: Right. For people who don't have a period, you have to miss a couple of them before you think to yourself, huh, I wonder if I'm pregnant. Unless you are striving to get pregnant, in which case, none of this would apply to you because you would not be planning an abortion.
J. Aughenbaugh: But what was really novel about this law was the enforcement regime of the law. Instead of having state prosecutors enforce the law, State of Texas gave private citizens the right to sue abortion providers in civil court. If a private citizen could show a state civil court that an abortion provider violated the law and provided an abortion after the sixth week, the violators would have to pay fines.
N. Rodgers: Wait, wait, wait, wait. That sounds to me like, saddle up, posse, we're going out and we're going after some people, which in the Wild West, I know Texas thinks it's the Wild West, was actually something that you did. But is that really how we do law? That seems weird to me. Is that weird? That seems weird.
J. Aughenbaugh: It is unusual and it led some commentators to refer to this as vigilante justice.
N. Rodgers: That's what it feels like. It feels, like I said, saddle up, people, we're going after some abortion providers or whoever. Or if this wasn't an abortion case but it was some other thing, that still seems weird that you would take it out of the hands of state prosecutors.
J. Aughenbaugh: What many Americans don't understand is that, Nia, on one hand you are correct. Typically, when we pass laws that regulate individuals' behaviors or even corporations' behaviors, we have agents of the state enforce the law.
N. Rodgers: I don't track down people who are here illegally and drive them to the border and boot them out of the country. There is an agency that does that with people who are trained to do that, theoretically, safely and carefully.
J. Aughenbaugh: No. You and I don't try to track down speeders on the interstate, right?
N. Rodgers: Yes. I'd pull somebody over and yell, slow down, and then let him go. Yeah, that would get me shot probably and it would not be a good thing.
J. Aughenbaugh: Yeah.
N. Rodgers: Also talk about arbitrary. If you leave it to citizens.
J. Aughenbaugh: Yeah, and that's part of the logic of having agents of the state. They have received their positions because of their training, expertise, background, etc.
N. Rodgers: Well, and theoretically, apply it equally. I know it's not and we have huge problems with justice system, but in a good justice system, all of it would be applied equally.
J. Aughenbaugh: Because it's the logic of the modern democracy. It's what Max Weber referred to, in his classic piece, the ideal type. Democratic societies would evolve to be bureaucratic, if you will, regimes where it's the position, not necessarily the people. Just because you and I, for instance, Nia, may hate speeders on the interstate, we're not law enforcement.
N. Rodgers: Yeah. What I get to do is yell in my car about how much you're a maniac for going past me at 90 miles an hour. But I don't get to do anything other than that.
J. Aughenbaugh: I get to curse you because you caused me to spill my coffee.
N. Rodgers: But that's pretty much the end of it. That's the end of my authority and it's a good thing because there are days where I wouldn't be bothered because I'd be on my way somewhere and I'd be like, whatever and there'll be other days where I would over enforce, that's the thing. So anyway.
J. Aughenbaugh: Here's the rub as Shakespeare would say.
N. Rodgers: We love Shakespeare.
J. Aughenbaugh: Yes. For liberals, we do have certain types of laws that allow private citizens to bring lawsuits to, if you will, punish other private sector behavior.
N. Rodgers: Yeah. If you put garbage in the river and I find out you did it, I can sue the ever living snot out of you for ruining my access to the water.
J. Aughenbaugh: Many federal and state environmental laws give private citizens the right to file a suit into that jurisdiction's courts.
N. Rodgers: To punish that behavior or to make it stop.
J. Aughenbaugh: Et cetera. We have environmental statutes, government fraud statutes. If you, for instance, become aware that a government official is engaged in fraud, you can bring the lawsuit. Again, the logic is, can we actually trust government officials to prosecute other government officials when it might be those government officials who are engaged in fraudulent behavior?
N. Rodgers: A more accurate governmental example for me in terms of environment would be me suing the EPA for not enforcing the garbage putting into the James River when I want to go rafting. That would be me saying to both the company that did it and to the state and to the city, somebody needs to fix this. This is not okay. Part of what you're doing with that is to stop the behavior, which is what Texas is after when they're saying that private citizens can sue providers.
J. Aughenbaugh: Providers, not women.
N. Rodgers: You can't sue the person who's having the medical procedure, but you can pursue the person who is doing the medical procedure and sue them.
J. Aughenbaugh: Yes.
N. Rodgers: Because if they had made it about the women, it would have immediately been shot down.
J. Aughenbaugh: Because unless the Supreme Court is willing to go ahead and overturn Roe v. Wade and Planned Parenthood versus Casey, which, again, Texas was smart. They knew the Supreme Court hadn't done that yet and might not ever do it. But the classic example of this enforcement regime is Title 7 of the 1964 Civil Rights Act. Title 7 of the 1964 Civil Rights Act prohibits private sector employers from discriminating based on a number of characteristics; race, gender, age, religion, national origin, ethnicity.
N. Rodgers: Which allows you to sue if in the interview they ask you if you're married and you say, yes, and they say, huh, and then they don't hire you. Or what your ethnicity is.
J. Aughenbaugh: Or they fire you because of your race. You don't go to a federal agency and ask the federal agency to prosecute the business.
N. Rodgers: You go to an employment lawyer.
J. Aughenbaugh: You have a right as a private citizen to bring a lawsuit against that business. That's what was novel about this law.
N. Rodgers: Part of the problem here, emotionally, please correct me if I'm wrong, is that people are reacting to the abortion part of it?
J. Aughenbaugh: Yes. But what the Supreme Court ruled on was.
N. Rodgers: Was the enforcement part of it.
J. Aughenbaugh: Yes.
N. Rodgers: Saying, we do this in other cases, why can't we do it in this case?
J. Aughenbaugh: Whole Women's Health Organization brought the lawsuit before any private citizen in Texas filed a claim to enforce the law.
N. Rodgers: Because that was coming.
J. Aughenbaugh: Five justices, Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett held that the Supreme Court did not have the jurisdiction to issue an injunction to stop the enforcement of the law. Why? Because typically, federal courts only stop the enforcement of the law by the actors. But there's no state actor who is enforcing the law. At the point of the lawsuit, no private citizen had filed a lawsuit against an abortion provider. So as far as the Supreme Court was concerned, at least five of the justices, we don't have jurisdiction because nobody has yet tried to enforce the law which stop actors. We don't stop laws.
N. Rodgers: That means that if there is a lawsuit and then there is a counter-suit of you shouldn't be allowed to do this, you shouldn't be allowed to sue me, that might make its way up to the Supreme Court where these five would then have to say, "Oh, I guess we do have to take this case and we do have to rule on". All they did was take a can and kick it just a little bit out into the yard.
J. Aughenbaugh: In fact Nia, that's the way I described it in one of my classes. I said all that these five Justices did was basically say, "You brought whole women's health, you brought your lawsuit too soon."
N. Rodgers: You jumped the gun.
J. Aughenbaugh: You jumped the gun.
N. Rodgers: But what did the four say?
J. Aughenbaugh: Now, the four Justices who would have issued an injunction to stop this law from going into effect.
N. Rodgers: Are three liberals?
J. Aughenbaugh: Yeah, the three liberals and Chief Justice John Roberts. Roberts said, "The court should've issued an injunction because the enforcement regime was so unusual with this constitutional right."
N. Rodgers: Okay. He did actually make it about abortion.
J. Aughenbaugh: About abortion.
N. Rodgers: In that sense, he was like, "Those other things are different and this applies differently. We should do something about this."
J. Aughenbaugh: Yes.
N. Rodgers: Okay.
J. Aughenbaugh: The three liberals all wrote separately to go ahead and say the court should've claimed jurisdiction and issue the injunction because quite clearly, this was the state of Texas attacking a constitutional right. They were even more emphatic than the Chief Justice. Roberts was just like, "Hey, wait a minute here. This is an unusual enforcement regime."
N. Rodgers: You can hear him saying that, this is most unusual. We should take a break and pause on this. An injunction is just a pause. That's just a legal word for pause.
J. Aughenbaugh: Yeah. We're going to pause all proceedings on this until we have a case on the merits. The three liberals were just like, "Whoa, whoa, whoa, whoa, whoa, whoa."
N. Rodgers: You are not going to do an end-run on getting rid of Roe v Wade and a woman's right to have reproductive autonomy.
J. Aughenbaugh: That's right.
N. Rodgers: Which is interesting because most of the media reported it as the five coming out pro-life and that is not actually what they're doing. What they're doing is saying, "No, you're not following the process."
J. Aughenbaugh: You've got to follow the process which again is one of the great ironies of the shadow docket ruling on the Texas abortion law. Because you've got the five justices who issued a ruling saying, we got to follow the process but one of the criticisms of the shadow docket is the Supreme Court is not doing what?
N. Rodgers: Following the process. This shadow docket, it's just a mess. Part of the problem partisan-wise about how it's being viewed in the media especially this case, is that you have Democrats seeing it as an attack on reproductive rights.
J. Aughenbaugh: Yes.
N. Rodgers: Not keeping in mind that they like it when it applies to.
J. Aughenbaugh: The environmental laws, government fraud laws.
N. Rodgers: Civil rights.
J. Aughenbaugh: The 1964 Civil Rights Act is considered the landmark federal civil rights law. You and I have discussed it in this podcast. It was the biggie. You've ironically complained, it was based on the commerce clause.
N. Rodgers: Everything comes back to the commerce clause, doesn't it?
J. Aughenbaugh: This is part of the conflict. Again, when I discussed this ruling in my classes, a lot of my students were just like, and the way I described it was, the Texas legislature was basically rubbing liberal's nose in the fact that they adopted an enforcement regime that liberals like in other areas of law. But then I also cautioned my conservative students.
N. Rodgers: I was going to say there's another side to this though, isn't there, in this partisan question.
J. Aughenbaugh: Yes. If the Supreme Court doesn't finally address this enforcement regime. You shouldn't be too comfortable with the success that Texas might have. Because what happens if liberal democratic states decide to go after rights that you as conservatives like and enjoy.
N. Rodgers: Like gun rights.
J. Aughenbaugh: Yes.
N. Rodgers: You shoot me in California, and California has put in a regime where the state tries you for a crime. But my family can sue Smith and Wesson for providing you with the method that harms me.
J. Aughenbaugh: Or let's say there is a gun crime and the police can't collect enough evidence to point to who may have used the gun. They find the gun but they don't know who used the gun. But you as family members of the victim of gun crime could sue perhaps the gun store owner, the maker of the gun, and what happens to legal gun sales in a state where private citizens, family members, loved ones of victims of gun crime can sue the owners of gun shops who sold the guns or the manufacturers of guns.
N. Rodgers: They are the gun provider.
J. Aughenbaugh: Yeah, that's right. They are the gun provider. In the language of the Texas abortion law, you don't go after the state. You go after the provider of the device, the service etc.
N. Rodgers: The means or method, yeah.
J. Aughenbaugh: Yes.
N. Rodgers: This is dangerous territory we're in now.
J. Aughenbaugh: Yeah.
N. Rodgers: I agree with you. By the way, Texas said hold my beer in the Supreme Courts and we don't want to hold you beer. No, no, no, no, no, no. Your beer has a giant can of worms in it. That's what your beer has.
J. Aughenbaugh: Your can of beer has holes and your beer is getting all over me right now and I'm not a beer drinker. I'm a wine drinker or I'm a scotch drinker. I don't like beer. Get this away from me.
N. Rodgers: Okay. It's not as cut and dried as the media is making it sound and it's pretty complex. It's going to end up coming back. This is a zombie ruling because this will end up coming back as soon as someone attempts to.
J. Aughenbaugh: To enforce the provisions of the law. As I told my students and listeners, I definitely think you should look for the Supreme Court's ruling in this case. This coming term which again begins next month, the Supreme Court has agreed to hear a challenge to the Mississippi abortion law. The Mississippi abortion law prohibits abortions after the 15th week. Mississippi modeled at least the time-frame on what we see in many Western European democracies which ban abortions after the 16th week. The first name party in the case is Hobbs, H-O-B-B-S. Mississippi has directly asked the Supreme Court to overturn its precedence in planned parenthood versus Casey in 1992 and Roe v Wade in 1973. Depending on how the Supreme Court rules in that case, I could easily see the supreme court issuing a ruling in the Hobbs case. Then when the Texas law does finally get enforced and appealed the whole way to the Supreme Court, the Supreme Court will say to the Texas courts or the lower federal courts, you must decide any challenge to the Texas law in ways consistent with our ruling in the Hobbs case. Hobbs is going to be extremely important because that's where again, you have written briefs, you have oral arguments. This case has taken a couple years to get to the Supreme Court.
N. Rodgers: It's going to go through the full vetting process.
J. Aughenbaugh: Full vetting process.
N. Rodgers: Transparent in the sense of when we get the rulings, they will be long because they will be, and there will be concurrences and dissents and we will get all of the legal argument as the Justices see it standing now.
J. Aughenbaugh: Yes.
N. Rodgers: Can I just wrap up with asking you a question?
J. Aughenbaugh: Sure.
N. Rodgers: Do you think they regret using the shadow docket in these instances? With the firestorm that it has brought.
J. Aughenbaugh: Nia, I'm going to go back to a comment that I made in the previous episode about the shadow docket. I really get the sense that some of the justices are getting tired of lower federal court and in some cases State's Supreme Court judges. But typically, lower federal court judges issuing nationwide injunctions that have the effect of either stopping or allowing policy to go through for the entire country before the case has been fully debated, discussed among the lower courts. I really think there is a cadre and I don't know how big, but I get the sense that there are three or four justices on the current Supreme Court who really want to send a clear message to lower federal court judges. You guys have to stop issuing nationwide injunctions. That we live in a democracy and the political branches get to enact and enforce regulations. Only after they have been applied, If people bring cases to challenge those laws and regulations, only then do the courts get to step in. I think maybe some of the justices, depending on the case, regret using the shadow docket or are critical of their college for using the shadow docket. But I think there are at least three or four justices and if I had to venture a guess, the justices are Thomas, Gorsuch, Alito, into to a certain extent, Kavanaugh. I don't know about Coney Barrett yet. She's only on, a lot of folks don't recognize.
N. Rodgers: She's still a freshman in a lot of ways.
J. Aughenbaugh: She's been on the court for less than a year.
N. Rodgers: She hasn't set a full session yet, she hasn't done a module yet.
J. Aughenbaugh: But I think those three or four justices, the lower federal courts many of those judges were appointed by Democratic presidents. Thought they were saving the country from Trump. But you engaged in practices that now can be turned around and used against President Biden.
N. Rodgers: It is not our job to be partisan. The courts should not be partisan. You are not taking sides. We should not be taking sides in the political debate. We should be answering the question of whether this thing is constitutional or legal or regulatory, but not whether this is, we're not debating the ethical or moral.
J. Aughenbaugh: Is this good policy or bad policy?
N. Rodgers: That's not the question we're here to answer as the courts. The question we're here to answer is the court says, is this legal? Can you do this under statute, under regulation, under this constitution? If no, then no. If yes, then man, I don't like it, but it's legal. It's legal for you to do it. I'm actually with them on that, I hate to say. That makes me feel a little bad, but there's a part of me that's like, but that's not the role of the courts. The role of the court is to say whether something is legal or not. If it does venture an opinion as to what could make something legal, then it has to pump that to the-
J. Aughenbaugh: The political branches.
N. Rodgers: Say to the political branches, you all could fix this and then it would be fine. If they choose not to do that or they're incapable of doing it because they're incapable of making it happen. That's not the court's problem. The court has told you what you could do.
J. Aughenbaugh: I think it's noteworthy, to wrap up this episode, Nia, I think it's noteworthy that we are recording this episode right after two of the Justices, Stephen Breyer and Amy Coney Barrett have recently gone ahead and said in public forums that the court is not made up of partisans. We have different philosophical and interpretive approaches, but our job is to interpret the law or the constitution or regulation and settle concrete disputes. Breyer is running around TV showing his new book and he keeps on getting asked one when he's going to retire and two.
N. Rodgers: Which by the way, if anybody's listening, quit asking that. It's rude. You don't ask people are you dead yet. Stop. Early days. I don't say that because I have any particular love for Breyer having listening to several of his interviews. I'm not a huge fan, but by the same token, leave the man alone. Let him retire when he wants to. Good golly.
J. Aughenbaugh: I think he's made it very clear he doesn't want to die in office.
N. Rodgers: But he's also not going this term. Not often until next summer when you can start asking him again, but he's certainly not going to quit mid term.
J. Aughenbaugh: I've told students, as long as Justice Breyer stays away from bicycles, he's had a couple of bicycle incidents that he suffered injuries. As long as he stays away from bicycles and I think by all accounts, he stopped riding bicycles, he's healthy. If you read his opinions last term he quite obviously is enjoying his work.
N. Rodgers: He's still of sound mind, whether you agree with him or not, which is a separate aside, he is of sound mind. I think it's interesting that he and Amy Coney Barrett, Justice Barrett, as she is the youngest. He is one of the oldest, if not the oldest.
J. Aughenbaugh: He is the oldest, yes.
N. Rodgers: They're both saying the same thing. They're both saying, this doesn't need, this is not about partisanship, that's not our job.
J. Aughenbaugh: I can understand, I'm a political scientist. The dominant perspective in political science is to conclude that judges are just as partisan and policy-oriented as members of the political branches. But for those who work in those jobs, in those institutions, they will attest, swear under oath in public fora. We're not partisan.
N. Rodgers: Well, and we do see them occasionally do what we think of as crossover or going, because what they're using is they're trying to be consistent with what they believe. How you should read the constitution, how you should enforce the law and if that forces them into a position where they're over there with a justice that they normally would not vote with. Then they're stuck because they have to do that. If they're going to be consistent with their own stuff and I'm sorry, you were wrapping this up and then I got off stuff on a tangent.
J. Aughenbaugh: But to your point, Nia and when they do end up voting with people on the allegedly other side of the ideological spectrum. Then their advocates complained that they're being unfaithful.
N. Rodgers: What do you want from these people? Damned if they do and damned if they don't.
J. Aughenbaugh: Damned if they don't.
N. Rodgers: You're too partisan, You're not partisan enough. Oh my goodness. What do you want from me? You know there are days when that's what they do. They're drinking their coffee mug and they're reading something in the paper and then they just slam it down and say, what do you people want from me? Well, thank you Aughe for talking to us about these cases. I'm sure that we will touch on the new case when it comes through the Hobbes case, which I'm assuming won't be until the new year. Because it will take that long probably to write all of the.
J. Aughenbaugh: Of the cases that are already on the court's docket for October and November. There are two, ones the Hobbes case about the Mississippi abortion law and then the other one is the New York gun control case. I have a feeling a lot of justices will want to write opinions, so we might not get those rulings till 2022.
N. Rodgers: Till April. Well, we'll come back down and talk about it then.
J. Aughenbaugh: Sounds good, Nia. Thanks.
N. Rodgers: Thank you.
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