The Supreme Court Deliberates

 

And we await its decisions.

Since Dobbs, the pundits who try to predict the outcomes after deliberations have had to stop and re-categorize their guesses. This appears to be a court with an agenda, both with the number of shadow docket cases with responses lacking case law backup or explanations, and in the cases it accepts. According to Demos: "While public attention on the Court has understandably focused on merits docket cases, the Supreme Court has been issuing equally destructive rulings on the less scrutinized shadow docket. This scrutiny becomes even more important with news of ultraconservative justices receiving lavish gifts and vacations from right-wing mega-donors and the potential influence on their rulings."

When it chooses, the Supreme Court (Scotus) can act quickly, as was seen in the Colorado ballot legality question. It promptly ruled against the Colorado petitioners and kept DJT on the ballot as many expected.

The court was widely expected to turn away the question of presidential immunity after the DC Circuit Court issued what was considered to be a definitive opinion denying the issue of immunity. As reported by the Washington Post:

"But in their opinion Tuesday, they said it is Trump's own alleged crimes — "an unprecedented assault on the structure of our government" — that threaten democracy if left beyond the reach of criminal prosecution.

"We cannot accept former President Trump's claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results," the judges wrote. "Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count."

Scotus ruled against Special Prosecutor Jack Smith's early petition for a decision in December and sent the question to the lower federal court. Subsequently, Judge Chutkan ruled against the question, stating that a president was not a king. Since the appeal to the DC Circuit Court suspended the scheduled March date, the January 6^th Insurrection trial start is also in question. The appeals court stated in its decision that the former president had no extended rights and should be treated as any citizen of the country, much as one would be if their name was Mr. Jones or Ms. Doe.

The appeal to the court was another of the delaying tactics that seemed to serve the former president well, and delays have been used in each of the venues where he faces a trial. In Georgia, he went after the prosecutor, Fanni Willis, and delayed the start dates for the RICO trial. In New York, he tried to move to another court level, and when that didn't work, he asked for a different venue. He tried to get the judge to step down and used bullying tactics against him and his family until hit with a gag order, which only temporarily slowed him down.

In the Mar-a-Lago classified documents case set under Judge Cannon, even though she appears to be a friendly judge, he also tried to get the case dismissed and had his attorneys file multiple motions that must be addressed, before the trial could begin. And the judge is taking her time to answer with her decisions on their petitions.

So, the court agreed to hear this appeal, but did not expedite the hearings, instead it scheduled it in the last week of the session for this term. It will also not render a decision until all justices produce their opinions, which could be as late as the first week of July, after which the court goes into hiatus until October.

I have only heard snippets of the oral arguments offered, but several of the comments from the conservative justices were unnerving. One justice said he did not want to address the question in this case, but wanted to look at what might happen somewhere down the road with a future president. They were walking all around the instances under review, but not addressing the illegal activity. Justices Jackson and Sotomayer asked pertinent questions. Justice Jackson said, if immunity were granted, we would not have a president, but a king. The liberal justices did not accept the argument that if a president ordered the death of a rival. It would be a legal and approved act. Justice Alito argued that future presidents, once retired, could be persecuted by a vindictive successor for acts committed while in office, if they did not have immunity for official duties. Of course, that hasn't happened in the 200 years of our republic, but then, Alito harkens to life in medieval times when kings had rivals killed.

Some pundits, after listening to the discussions and questions asked, thought that the court might not go fully for immunity, but also might not dismiss the issue and would return the matter to Judge Chutkan's court for a decision about private and official acts. This would, of course, create another delay. Others thought that since Chief Justice Roberts gave little away in his questions, that he might sway the court toward denying immunity. I thought they would not review this matter, so my guesses are just that, guesses. So, my question remains, is the court now no longer working for the American people, but only for the former and disgraced president?

Of course, we are also awaiting the decision on continued unrestrained access to the abortion medication, Mifepristone. Most people recognize the spurious complaint here from those with dubious legal standing who question the safety of a drug that has an over 20-year history of legal and safe use across the world. Scientific American reports that, if the court rules in favor of the plaintiffs, this ruling could affect decisions made by the FDA and have unintended consequences.

"If the court sides with antiabortion activists and limits or bans the use of Mifepristone, the decision could undermine the FDA's authority to regulate all drugs and medical devices, potentially putting people who depend on those products at risk of harm."

The court also heard a complaint about health care in Idaho under the Emergency Medical Treatment and Active Labor Act (EMTALA) regulations. (This regulation states that all patients entering an Emergency Room (ER) must receive care and be stabilized before they can be transferred to any other healthcare facility. The law came about because uninsured patients, back in the 1980s, were turned away without care if they could not pay. They might be sent to a city or county facility, and be harmed by the transfer, either because of the time, distance, or lack of attended care.) As reported by the New York Times, Idaho recently passed a law stating that abortions could only be performed if the mother's life was in danger.  

"Idaho's ban allows abortion to save the life of a pregnant woman, but not to prevent her health from deteriorating. The federal government says it therefore violates the Emergency Medical Treatment and Labor Act, or EMTALA, which was enacted nearly 40 years ago."

ERs were turning away pregnant women in distress and, sometimes, helicoptering them to another state. Physicians have professional skills, but they are not omniscient, and cannot always discern when death is imminent, especially in emergencies such as ectopic pregnancies or aberrant bleeding. Each patient is different and brings to the table individual histories and medical backgrounds and their needs have to be met as presented. Medical personnel can define when a patient is critically ill and should be allowed to provide what they determine is necessary care, regardless of state legislation. The Times also reports: "One by one, doctors who handle high-risk pregnancies are disappearing from Idaho — part of a wave of obstetricians fleeing restrictive abortion laws and a hostile state legislature. Idaho's obstetrics exodus is not happening in isolation.

Across the country, in red states like Texas, Oklahoma, and Tennessee, obstetricians — including highly skilled doctors who specialize in handling complex and risky pregnancies — are leaving their practices. Some newly-minted doctors are avoiding states like Idaho."

Although Justice Alito brought up fetal personhood and the issue of saving a distressed fetus, that concern was not defined in the arguments. The women justices did not appear sympathetic to the arguments from the state, so maybe they could convince others to rule with them and decide that this 'death is imminent' restriction went too far. Common sense has to prevail somewhere in this matter. The Solicitor General argued: "In such cases, she said, "what Idaho is doing is waiting for women to wait and deteriorate and suffer the lifelong health consequences with no possible upside for the fetus. It stacks tragedy upon tragedy."

Women are dying or being permanently harmed when care is denied. These unconsidered ramifications from the hastily decided Dobbs' case continue to harm pregnant women across the country.

Meanwhile, the former president sits in a grungy NY courtroom, hearing testimony about his use of a tabloid to publish friendly stories about him and hide or pay off those who might have harmful stories, so as not to harm his election prospects. More to come, stay tuned. As President Biden said, at the White House Correspondents dinner, "I heard Donald ran into some stormy weather!"

While over in Arizona, the Democrats, and a few Republicans, finally got the 1864 antiabortion law repealed. However, the state just indicted the fake electors who certified they were the real deal back in 2020. Others, including John Eastman, Christina Bobbs, Boris Epshteyn, Mark Meadows, Rudy Giuliani, Jenna Ellis, and the former president, were also included here in the indictment, some as unindicted co-conspirators. And the fun continues! Isn't accountability great?

Til next week-peace!