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Supreme Court stays Louisiana anti-abortion law, Roberts sides with liberals

Supreme Court stays Louisiana anti-abortion law, Roberts sides with liberals


The Supreme Court has granted a stay of the new Louisiana anti-abortion law, in a 5-4 vote with Chief Justice Roberts siding with the four liberal Justices. The law in question requires a doctor performing abortion to have admitting privileges at a nearby hospital, which critics alleged would result in only a single abortion doctor in the entire state.

This is only a stay pending appeal, not an ultimate disposition of the case.

The Order provides:

The application for a stay presented to JUSTICE ALITO and by him referred to the Court is granted, and the mandate of the United States Court of Appeals for the Fifth Circuit in case No. 17-30397 is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.


Kavanaugh wrote a dissent which provided in part:

I respectfully dissent from the Court’s stay order. In this case, the plaintiffs raised a pre-enforcement facial challenge to Louisiana’s new admitting-privileges requirement for doctors who perform abortions. The Fifth Circuit rejected the plaintiffs’ facial challenge based on that court’s factual prediction that the new law would not affect the availability of abortions from, as relevant here, the four doctors who currently perform abortions at Louisiana’s three abortion clinics. In particular, the Fifth
Circuit determined that the four doctors likely could obtain admitting privileges. The plaintiffs seek a stay of the Fifth Circuit’s mandate. They argue that the Fifth Circuit’s factual prediction is inaccurate because, according to the plaintiffs, three of those four doctors will not be able to obtain admitting privileges. As I explain below, even without a stay, the status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period. I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.

* * *

In order to resolve the factual uncertainties presented in the stay application about the three doctors’ ability to obtain admitting privileges, I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period. The Court adopts an approach—granting the stay and presumably then granting certiorari for plenary review next Term of the plaintiffs’ pre-enforcement facial challenge—that will take far longer and be no more beneficial than the approach suggested here. I respectfully dissent from the Court’s stay order.

It’s unlikely the law ever is going to be allowed to go into effect in the current configuration of the court.

This Scotusblog tweet seems right:

Tonight’s injunction suggests that the Court is not poised to pivot hard in the direction of limiting abortion rights. Both the Chief Justice (in granting the injunction) and Kavanaugh (in saying he would deny it pending factfinding) seem inclined to hew to existing precedent.

It’s also clear that Chief Justice Roberts is the new swing vote.


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C.J. Roberts is not to be trusted.

    OleDirtyBarrister in reply to EBL. | February 8, 2019 at 1:57 pm

    It makes one wonder if he was really better than Harriet Myers.

    Would old Harriet have latched onto a pretext to save the ACA under the tax and spend clause? Would the old bird have voted to stay the law which is a “reasonable and common sense restriction on abortion to protect public safety”? (Note that is the language of the left when it comes to stomping on the textual Second Amendment).

    Would Harriet Myers believe that there is no such thing as an “Obama Judge”?

    I am not saying she was a natural choice to be a SCOTUS justice, but she did rise to become managing partner of a substantial law firm. She was a bit old if we really want someone to make a conservative imprimatur. Apparently she wrote some hand written note to Bush with some flawed and twisted prose and got everyone worked up. I am not sure what else about her cause such a negative reaction. But would she have been worse?

Either he is a squish or compromised.

He’s a Bush appointee. That’s all you need to know.

And for the terminally deranged lunatic nevertrumpers that voted for Bush and tried to put Clinton in the WH, Bush is your collectivist. Trump remains the most effective conservative in 50 years.

5-4 means that RBG voted. Did she show up for court, and if not then who voted for her?

    RedEchos in reply to fast182. | February 7, 2019 at 10:42 pm

    My first thought

    Milhouse in reply to fast182. | February 8, 2019 at 1:16 am

    She wouldn’t have had to show up to vote on this. She could vote from home.

    Milhouse in reply to fast182. | February 8, 2019 at 1:39 am

    PS: None of the other justices would have “shown up” for this vote. I don’t believe there is ever an in-person meeting and a show of hands on applications for stays; the justices just indicate their votes from their offices. So it would make no difference whether RBG was in her office or at home.

      RedEchos in reply to Milhouse. | February 8, 2019 at 3:02 am

      If she can work from home how do oral arguments work? I believe it was reported here that she could review transcripts for the time she missed.

      If that is true, would Kavanaugh be able to review transcripts for the first week that he missed? Or would they deny on the grounds he was not yet a Justice?

      userpen in reply to Milhouse. | February 8, 2019 at 9:05 am

      You certainly know a lot of things, but one thing you do not know is whether Ginsburg is mentally capable to render a decision. And that is the only thing that matters.

        mailman in reply to userpen. | February 8, 2019 at 10:27 am


        This is a comment I have previously had about Bader-Manhoff calling it in from home. If she is not well enough to be in her place of work then she should be stepping down and allowing someone else, fit enough, to do what can only be described as a mentally challenging job.

        As you say, we have no idea if she is competent enough to be able to work from home under her own steam. The fact she has been missing in action now for quite a while SHOULD be setting alarm bells off around whether she was in fact able to make a decision in this case.

          dystopia in reply to mailman. | February 8, 2019 at 11:08 am

          She would be on the Court and voting even if she were in a persistent vegetative state. Her Glasgow Coma scale could be 1 and she would still be voting. They would keep her “alive” by using a ventilator, or an external membrane, dialysis. Left ventricular Assist device. She will not be permitted to officially die until Trump leaves office.

        userpen in reply to userpen. | February 9, 2019 at 11:43 am

        What does it mean to say “the supreme court is in session” if no one is there? Do the justices ever at any time have a need to physically come the supreme court to conduct business? Is it necessary for them to see each other? Talk to each other? Can they vote on cases while on vacation? If one of them is very very sick, perhaps terminal, do we not have a right to know if he or she is of sound mind and able to make competent decisions and not in a coma or on life support?

      dystopia in reply to Milhouse. | February 8, 2019 at 9:43 am

      Absolutely accurate. And to RedEchos — Kavanaugh has the option of doing just that. There is no requirement that a Justice be present for oral argument. T

Obama Judge

Eastwood Ravine | February 8, 2019 at 12:56 am

Now we know why Chief Justice Roberts is so amicable to letting RBG “work” from home. If he’s the new swing vote, he cares about preserving balance. (Which is the best case scenario for constitutionalists.)

It’s time for Trump to directly inquire about the status of RBG and be prepared to push a movement conservative onto the court.

    Washington Post recently reported that RBG was seen at the theatre, so if she’s healthy enough for a night out, she certainly should be healthy enough to show up for work

    Joe-dallas in reply to Eastwood Ravine. | February 8, 2019 at 9:03 am

    FWIW – The executive branch has no authority to remove RBG, so having Trump call for her removal is only political showmanship.
    The Senate has the sole authority to remove a justice, but it requires 2/3 vote. Even if she is comatose, not a single Dem senator will vote for her removal.

The dirt the left must have on roberts must rival what they have on boehner.

Both are complete pieces of feces.

Which makes it more critical than ever that POTUS get another SCOTUS pick – someone like Coney-Barrett and NOT someone like Kavanaugh. Sorry guys but Kavanaugh is another Kennedy and the “balance” on the court remains pretty much EXACTLY what it has been in the 21st century.

Only if someone like Coney-Barret replaces someone like RBG or Sotomayor will the “balance” possibly change.

But I’m still not convinced that the Roberts/Kavanaugh party of two will not keep disappointing constitutionalists for decades to come.

And yes, I know that this POTUS’s picks are far and away better than what we would have had with Clinton. Just saying that don’t look to the Supremes for salvation, just be glad they are not as bad as they could have/would have been.

I think it is no more complicated than the simple truth that the Supremes don’t want to touch off the mass social and political chaos that undoing Roe would bring about.

    MarkS in reply to Whitewall. | February 8, 2019 at 7:21 am

    So now the side that threatens the most violence wins?

      Whitewall in reply to MarkS. | February 8, 2019 at 7:28 am

      Exactly. Welcome to the end stage of ‘democracy’. Mob violence is now the order of the day on other matters as you have no doubt seen.

      Subotai Bahadur in reply to MarkS. | February 9, 2019 at 12:05 am

      Which means an incapacity for violence equals an automatic loss on any issue. There is a wholly different set of incentives in the political world, and they are no longer optional. Keep thine codpiece buttoned, because things are going to get kinetic.

      Subotai Bahadur

It seems to me that Justice Roberts suffers, as former senator John McCain did, and former senator Jeff Flake still does, from Trump Derangement Syndrome – remember Justice Roberts’s strong rebuke of President Trump several months ago? Roberts is not going to support anything that, in his perception, Trump might favor.

“Roberts sides with liberals” Swing Vote

The Supreme Court continues to ignore the constitution in favor of ‘balance’, whatever that is.

regulus arcturus | February 8, 2019 at 9:01 am

So traitor Roberts and Ruth Buzzy Gallbladder both need to be removed.

Time for forced retirement, too.

Time to reorganize the SC and bring the judicial branch to heel.

Borrowing from Barry Goldwater… Roberts believe that moderation in the pursuit of justice is a virtue.

    regulus arcturus in reply to alaskabob. | February 9, 2019 at 2:12 pm

    Slight edit:

    Moderation in the pursuit of consensus, not justice.

    What Roberts believes in is not justice by any measure.

    Roberts is a political whore.

“This is only a stay pending appeal, not an ultimate disposition of the case.”? True, but we are looking, at least, the court’s new ‘Kennedy’. Roberts has been a complete disappointment.

“This is only a stay pending appeal, not an ultimate disposition of the case.”

He could have just used this to force a debate of the issues for a definitive ruling. But I fear I am being too optimistic about Robert’s true character.

We shall see, eventually.

Looks like Roberts “has grown in office.”

Roberts was always exactly what he is now, a Bush liberal moderate on social issues. Nothing has changed, except, he can no longer hide his true nature behind Justice Kennedy, he has to be the liberal swing vote. Look for Kavanaugh to be similar.

Ol’ W did a number on us, didn’t he?

Roberts is a wretched, evil individual. He lets his personal views invade his decisions, rather than what the Constitution says and what the writers meant when they wrote it.

Problems with FISA Court? Chief Justice Roberts = sound of crickets.

A pity that one unelected man has so much power and chooses to use it so deleteriously. No checks and balances here.

1950 – coat hangers in back alleys …OUT
2010 – coat hangers in back alleys …IN