Late on Thursday night, when hardly anyone was watching, Justice Brett Kavanaugh decided to conduct a covert op on whatever is left of the political reputation of Senator Susan Collins, Republican of Maine. You may recall that, when Kavanaugh's nomination was hanging fire, Collins did her Down East Hamlet act for a couple of days before announcing that she would vote for PJ's beer buddy. She explained her decision by saying that Kavanaugh had convinced her that he would respect precedent, including all those precedents that protected a woman's right to full reproductive health, including abortion.
On Thursday night, Kavanaugh proved that, at best, Susan Collins is the biggest all-day sucker in American politics today. From The New York Times:
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority. That coalition underscored the pivotal position the chief justice has assumed after the departure last year of Justice Anthony M. Kennedy, who used to hold the crucial vote in many closely divided cases, including ones concerning abortion. The court’s brief order gave no reasons, and its action - a temporary stay - did not end the case. The court is likely to hear a challenge to the law on the merits in its next term, which starts in October. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have denied the stay. Only Justice Kavanaugh published a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.
This rather soft-pedals what Kavanaugh did. In his one-man opinion denying the stay, Kavanaugh essentially showed that he doesn't feel bound by precedent at all in this matter. After all, the Louisiana law is identical to a Texas law that the Court already overturned three years ago. Kavanaugh didn't need "more information" to know that.
Instead, his dissent relies on, along other things, the transparently phony notion that Louisiana officials will be judicious in using the law they've already passed. He writes:
...the State's regulation provides that there will be a 45-day regulatory transition period before the new law is applied. The State represents, moreover, that Louisiana "will not move aggressively to enforce the challenged law" during the transition period.
You'd have to be as big a sap as Susan Collins is to believe that one. It's impossible that even Kavanaugh believes it. What the defenders of the right to choose feared-and of which they still remain wary-is that upholding the Louisiana law will send a clear message to state judges that the federal system will not defend its own rulings. Thus would Roe v. Wade essentially die from a thousand cuts. Or that the law itself eventually will come before the Court as it is now constituted, with Kavanaugh and Neil Gorsuch having replaced Antonin Scalia and Anthony Kennedy.
Much is being made of Chief Justice John Roberts's having joined the majority in the Louisiana case, thereby giving the temporary stay a 5-4 majority. It is clear from time to time that Roberts cares as much for the reputation of the Court-and, by extension, his own-as much as much as he cares about the political positions he's held his entire life. If Roe is to die, it's not unreasonable to assume that Roberts would prefer it did so without his fingerprints on the murder weapon. Citizens United, Shelby County, and the overturning of Roe may not be the legacy Roberts wants to leave behind. Hey, given what's going on with the federal courts, that may be as sturdy a lifeboat as can be found.
Not that Roberts has discovered his inner Brennan. In the Court's other major decision Thursday night, he joined the conservative majority in gratuitous cruelty. An inmate in Alabama named Domenique Ray, facing execution this week, found his date with death delayed because the state prison there refused to allow him the spiritual solace of an imam at the time of his execution. Roberts and the other four conservative justices lifted the stay. As Justice Elena Kagan wrote in a fierce dissent:
A Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites.
The fig leaf that the majority used to hide its outright religious bigotry was that Ray waited too long to "seek relief." You'd have to be Susan Collins to believe that one.
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