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The principle that people would like to defend is the idea that states can’t simply find end-runs around something that is (under then-current Supreme Court pre

The principle that people would like to defend is the idea that states can’t simply find end-runs around something that is (under then-current Supreme Court precedent) a constitutionally-protected activity. This is what the Court did with its finding on the Texas law. You are correct that the Court has many ways to avoid providing a clear, consistent ruling that grounds its recent decisions in principle. But even this isn’t necessarily a bad thing: by doing so, the Court very clearly signals that it cannot be trusted to consistently enforce any legal principle, which is good support for the alternative solution: use the political and legislative process to remedy the situation.

makomk 4y ago
I don't think the Supreme Court actually ever ended up ruling on whether the Texas law's attempts to do an end-run around constitutional protections were allowed; Roe v. Wade was overturned entirely before that ever had a chance to come up. They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre-emptively sue the judges and clerks that would've been tasked with enforcing the law but given how fundamental not allowing that is to the functioning of the legal system that's no surprise.
- matthewdgreen 4y ago
  >They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre- What a weird description. Texas passed a law that was, under legal precedent at that time, unconstitutional. Plaintiffs sued for injunctive relief by listing the state officials who would enforce those laws. The Court decided that they couldn't sue those officials, and then further blocked them from every other conceivable legal remedy. I'm not sure how allowing states to write vigilante laws that punish people for Constitutionally-protected activity is a good thing, nor how asking the courts for relief of that would be an "end run" or how "not allowing that is [fundamental] to the functioning of the legal system," assuming "that" refers to some kind of remedy blocking enforcement of an unconstitutional law?
  - makomk 4y ago
    It's not a weird description at all. Imagine that one day you had what you thought was a valid cause to sue some dodgy corporation over some dispute you had with them, only to discover that your ability to sue had been taken away because that corporation had already taken the judges and legal clerks in your state to court and won a lawsuit against them which neither you nor anyone else with actual reason to sue ever had a say in. Because the Texas law was structured as a purely civil remedy just like if you were to sue someone else or some business over a dispute, allowing this kind of lawsuit against judges would open a direct route to this happening. It would create a way to entirely bypass the part where cases and controversies actually went to trial with the parties involved able to present their case. There's probably more sensible ways that the Supreme Court could've defanged that law, if they wanted to and the issue hadn't been rendered moot anyway.
  - s1artibartfast 4y ago
    >and then further blocked them from every other conceivable legal remedy They left room for clear legal remedy, it just wasn't a pre-emptive stay. The remedy was challenge the the law after it was actually used to deny some ones right, which would require the state to become involved. The "loophole exploit" is one which only serves to delay the time until an unconstitutional law can be struck down, not protect it forever.
    - matthewdgreen 4y ago
      It’s madness to allow an unconstitutional vigilante law to remain in force on the pretext that after enforcement took place, victims might be entitled to protection from the courts - on an individual basis and at their own risk. This creates a clear chilling effect. The plaintiffs knew this and the conservative judges on the Court also knew it. The politicians who passed the law also knew it: that’s precisely why they passed it. Fortunately the elected branches provide a backstop for when Courts begin endorsing absurd arguments like this. I presume we’ll keep seeing results like the one we saw in November as long as voters keep hearing absurd and politically-motivated arguments like this.
      - 4y ago
sokoloff 4y ago
It seems absurd that the legislature is considered the “alternative solution”. Why that’s not the primary solution for law-making surrounding reproductive rights continues to mystify me. Part of me thinks that if the parties were to actually accomplish their stated goals, they‘d lose the power that they get to fund-raise and drive turnout by highlighting how much work still remains…
jfengel 4y ago
That's the point: you can't use the political and legislative process to remedy the situation. The court can overturn any remedy you might create. They are the unchecked entity in the system of checks and balances. The only nominal checks on them are impeachment and the Constitution, both of which are politically impossible. A Constitutional amendment is an absurdly high bar that has not been crossed in a half century (with the exception of one piece of administrative and historical trivia passed as an undergraduate exercise). Impeachment is deployed only in extreme cases, and is too blunt an instrument for fixing any specific issue. If the judicial branch is dominated by any one entity, that entity has arbitrary capacity to pass any rules it wants, and there is nothing to be done that isn't tantamount to declaring the entire system irretrievably broken.

makomk 4y ago

I don't think the Supreme Court actually ever ended up ruling on whether the Texas law's attempts to do an end-run around constitutional protections were allowed; Roe v. Wade was overturned entirely before that ever had a chance to come up. They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre-emptively sue the judges and clerks that would've been tasked with enforcing the law but given how fundamental not allowing that is to the functioning of the legal system that's no surprise.

matthewdgreen 4y ago
>They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre- What a weird description. Texas passed a law that was, under legal precedent at that time, unconstitutional. Plaintiffs sued for injunctive relief by listing the state officials who would enforce those laws. The Court decided that they couldn't sue those officials, and then further blocked them from every other conceivable legal remedy. I'm not sure how allowing states to write vigilante laws that punish people for Constitutionally-protected activity is a good thing, nor how asking the courts for relief of that would be an "end run" or how "not allowing that is [fundamental] to the functioning of the legal system," assuming "that" refers to some kind of remedy blocking enforcement of an unconstitutional law?
- makomk 4y ago
  It's not a weird description at all. Imagine that one day you had what you thought was a valid cause to sue some dodgy corporation over some dispute you had with them, only to discover that your ability to sue had been taken away because that corporation had already taken the judges and legal clerks in your state to court and won a lawsuit against them which neither you nor anyone else with actual reason to sue ever had a say in. Because the Texas law was structured as a purely civil remedy just like if you were to sue someone else or some business over a dispute, allowing this kind of lawsuit against judges would open a direct route to this happening. It would create a way to entirely bypass the part where cases and controversies actually went to trial with the parties involved able to present their case. There's probably more sensible ways that the Supreme Court could've defanged that law, if they wanted to and the issue hadn't been rendered moot anyway.
- s1artibartfast 4y ago
  >and then further blocked them from every other conceivable legal remedy They left room for clear legal remedy, it just wasn't a pre-emptive stay. The remedy was challenge the the law after it was actually used to deny some ones right, which would require the state to become involved. The "loophole exploit" is one which only serves to delay the time until an unconstitutional law can be struck down, not protect it forever.
  - matthewdgreen 4y ago
    It’s madness to allow an unconstitutional vigilante law to remain in force on the pretext that after enforcement took place, victims might be entitled to protection from the courts - on an individual basis and at their own risk. This creates a clear chilling effect. The plaintiffs knew this and the conservative judges on the Court also knew it. The politicians who passed the law also knew it: that’s precisely why they passed it. Fortunately the elected branches provide a backstop for when Courts begin endorsing absurd arguments like this. I presume we’ll keep seeing results like the one we saw in November as long as voters keep hearing absurd and politically-motivated arguments like this.
    - 4y ago

sokoloff 4y ago

It seems absurd that the legislature is considered the “alternative solution”. Why that’s not the primary solution for law-making surrounding reproductive rights continues to mystify me. Part of me thinks that if the parties were to actually accomplish their stated goals, they‘d lose the power that they get to fund-raise and drive turnout by highlighting how much work still remains…

jfengel 4y ago

That's the point: you can't use the political and legislative process to remedy the situation. The court can overturn any remedy you might create. They are the unchecked entity in the system of checks and balances. The only nominal checks on them are impeachment and the Constitution, both of which are politically impossible. A Constitutional amendment is an absurdly high bar that has not been crossed in a half century (with the exception of one piece of administrative and historical trivia passed as an undergraduate exercise). Impeachment is deployed only in extreme cases, and is too blunt an instrument for fixing any specific issue. If the judicial branch is dominated by any one entity, that entity has arbitrary capacity to pass any rules it wants, and there is nothing to be done that isn't tantamount to declaring the entire system irretrievably broken.