Late yesterday, at the U.S. Supreme Court:

SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 21A24
WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE
JACKSON, JUDGE, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[September 1, 2021]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, dissenting.

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.

Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. [….] Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. [….]

KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 21A24
WHOLE WOMAN’S HEALTH ET AL. v. AUSTIN REEVE
JACKSON, JUDGE, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[September 1, 2021]

JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting.

Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking—which every day becomes more un-reasoned, inconsistent, and impossible to defend. I respectfully dissent.

End the filibuster. Now.

Previously:

Susan Collins (r) weighs in (September 1, 2021)

Always there (September 1, 2021)

Here we are (September 2, 2021)