Thinking Citizen Blog — Unanimous Supreme Court And The Abortion Pill (Mifepristone), The Frequency of Unanimity, Institutionalists Versus Textualists
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic: Unanimous Supreme Court and the Abortion Pill (mifepristone), the frequency of unanimity, institutionalists versus textualists
Mifepristone is used in over 60% of US abortions. The Supreme Court rejected the attempt by an anti-abortion group to stop its use. The vote was 9–0. The majority opinion was written by Brett Kavanaugh. The decision was based on a technicality — that the plaintiffs did not have “standing” to sue because they were not directly harmed.
“The ruling did not affect separate restrictions on the pill in more than a dozen states that have passed near-total bans on abortion since the court eliminated a constitutional right to the procedure in Dobbs v. Jackson Women’s Health Organization. (The bans do not distinguish between medication and surgical abortion.)”
How rare is unanimity in a divided court? Far less than I ever would have suspected. What dividing lines are there on the Supreme Court other than the liberal-conservative one? Today a few notes.
Experts — please chime in. Correct, elaborate, elucidate.
A LITTLE MATH — of the 57 cases in the 2023–2024 year, how many were decided by a 6–3 liberal conservative split? 5.
1. 27 were unanimous.
2. 5 were decided 8–1.
3. “In nearly 90% of the cases at least one of the three Democratic-appointed justices was in the majority.”
NB: “Justices Jackson, Sotomayor, and Kagan were all more likely to be in the majority than either Samuel Alito or Clarence Thomas.” “Moreover, the liberals do not generally vote with their fellow liberals: In the non-unanimous cases last year, they lined up together less than one-fourth of the time.And the conservatives? They’re even less likely to maintain a united front — the six Republican-nominated justices voted together only 17 per cent of the time. The justices least likely to be on the same side last year were Kagan and Alito, yet even they joined forces 61 percent of the time in cases that were not unanimous.”
THE INSTITUTIONALIST AXIS — SEPARATES THE CONSERVATIVES INTO TWO GROUPS OF THREE: the “institutionalists” (Roberts, Kavanaugh, Barrett — below) and the “textualists” (Alito, Thomas, Gorsuch)
1. “On the one end are justices who confine their considerations to what’s known in the legal world as “the four corners of the briefs” — the factual and legal analysis on the pages that advocates present to the court.”
2. “On the other end are the institutionalists, who take into account factors beyond the reasoning laid out before them, like the importance of upholding past precedents of the court.”
3. “When you consider the justices on this two-dimensional plot, with conservative to liberal on the horizontal axis and “four corners” to institutionalist on the vertical axis, the recent decisions start to make more sense.”
THE IMPORTANCE OF PRECEDENT AND CONSEQUENCES (for “people on the ground” as well as for the Court) (Below the “four corners” (eg. textualist) judges)
1. “Why would respect for precedent sort the justices differently? When a justice believes a previous case was decided correctly, reaching a decision is easy, and they affirm the prior decision. But when the previous decision now seems wrong or lower courts have had trouble applying it, some justices believe that you let the incorrect decision stand for the sake of consistency or reliability. Others, like Thomas believe the answer is: decide the case correctly and move on.”
2. “There are also differences in how justices weight the consequences of their decisions. Does it matter that the outcome of a decision may have chaotic results for the people it affects on the ground? Or is it the job of a justice simply to say what the law is and let the elected branches figure out how to deal with the fallout?”
3. “Gorsuch firmly believes the latter.”
NB: “Then there is the question of the credibility of the institution itself. Is it important that the American people see the justices agreeing as much as possible even if it means leaving hard questions for another day? For the chief justice, consensus — having as many justices as possible joining an opinion — is in itself a value. All of these factors can be thought of as part of what we consider the “institutionalist” spectrum.”
Supreme Court Maintains Broad Access to Abortion Pill
Opinion | The Verdict Is In on the Supreme Court
Opinion | Using Math to Analyze the Supreme Court Reveals an Intriguing Pattern
Opinion | What’s Behind the Conservative Rift on the Supreme Court
QUOTE OF THE MONTH
“Make your own Bible. Select and collect all the words and sentences that in all your readings have been to you like the blast of a trumpet.”
- Ralph Waldo Emerson
My spin — then periodically review, re-rank, and exchange your list with those you love. I call this the “Orion Exchange” because seven is about as many as any human can digest at a time. Game?
For the last four years of posts organized by theme:
PDF with headlines — Google Drive
Four special attachments below:
#1 A graphic guide to justice (9 metaphors on one page).
#2 “39 Songs, Prayers, and Poems: the Keys to the Hearts of Seven Billion People” — Adams House Senior Common Room Presentation, (11/17/20)
#4 Palestine Orion (Decision) — let’s exchange Orions, let’s find Rumi’s field (“Beyond all ideas of right and wrong, there is a field. Meet me there” Rumi, 13 century Persian Sufi mystic)
YOUR TURN
Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values.
Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values.
Or just some random justice-related fact that blew you away. This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.
