Friday, December 31, 2021

Chief Justice John Roberts - 2021 Year end report on the judiciary

Chief Justice John Roberts has released the year end report on the state of the Federal Judiciary. He discusses the role of former President and then Chief Justice William Howard Taft. Though he is not my cup of tea I do think that we would be much better off with former politicians than with former law professors and judges vetted by the Federalist Society.

His message to Congress: keep your hands off. - GWC

2021year-endreport.pdf

As Chief Justice, Taft took vital steps to ensure that the Judicial Branch itself could take the lead in fulfilling that duty. The Congress of his era appreciated the Judiciary’s need for independence in our system of separate and co-equal branches, and it provided a sound structure for self-governance. Since that time, the Judicial Conference has been an enduring success. It is up to the task of addressing the three topics I have highlighted, as well as the many other issues on its agenda. The centennial of the Judicial Conference this year represents 100 years of progress, and the Judiciary should be proud of its accomplish-

In 2021, it became obvious the US bishops and the pope are singing from different hymnals | National Catholic Reporter

In 2021, it became obvious the US bishops and the pope are singing from different hymnals | National Catholic Reporter

By Michael Sean Winters

The life of the Catholic Church in this country in 2021 was characterized by an obvious, flailing culture war fit and evidence the pope is more and more determined to press forward with the reception of Vatican II in ways that will likely affect the U.S. church in profound ways.

The effort by the leadership of the United States Conference of Catholic Bishops to pick a fight with the nation's second Catholic president was the dominant story of the year. NCR's editors named Archbishop José Gomez its Catholic Newsmaker of the Year because of his role in the bishops' conference's catastrophically narrow focus on President Joe Biden's support for legal abortion, and consequent failure to recognize the unique opportunity presented by having a president who attends Mass with a frequency fewer and fewer Catholics display, and who has articulated the importance Catholic social teaching has had on his political views.

The drawn-out squabble about how to frame a document about "eucharistic coherence" showed a conference that was torn between the lousy theology of the culture warriors who think Biden and other pro-choice politicians should be denied Communion and the otherwise universal practice of the church that distinguishes between lawmaking about an evil action and the performance of the evil action itself.

Part of the problem with the debate was a function of the fact that the bishops' June meeting was virtual and the kind of dialogue needed to forge a consensus was therefore impossible. But only part. The other main cause of this debate was that the bishops had elected Archbishop Joseph Naumann to lead the Committee on Pro-Life Activities four years ago, and he used that perch to push for this strategy. When the Vatican intervened, making it clear such a strategy was impossible, the bishops realized in the summer what they should have realized all along: That they needed an off-ramp from this misbegotten approach.

The compromise was a text that is not even technically a teaching document because the conference leadership announced it would not be sent to the Holy See for the canonical approbation necessary for such documents to become binding under the terms of canon law, and specifically St. Pope John Paul II's teaching in Apostolos Suos (Paragraph 22). They have gussied up the document with a proposed eucharistic revival which is not a horrible idea in itself. But when they announced the revival would culminate with a national eucharistic congress costing an estimated $28 million, jaws dropped on both sides of the Atlantic.

"Told by an idiot, full of sound and fury, Signifying nothing," says Macbeth. But that is not quite right. The sound and fury of the bishops' debacle over Biden — among other items, especially liturgy — signified how out of touch the U.S. bishops' conference was with their people and with the direction the pope is indicating. There remains acute resistance to this pope, and it is more and more evident that such resistance is actually rooted in a deeper opposition to the Second Vatican Council.

John Roberts Boasts Majority Approval Among Democrats

John Roberts Boasts Majority Approval Among Democrats

By Eric Levitz - New York Magazine

Segregation - The Color of Law - Richard Rothstein

Richard Rothstein, author of The Color of Law - with Ta Na e Si Coates

Rcial Covenants in Levittown Deeds

Crisis in Levittown, PA: Segregation and Racial Conflict in Suburbia

Opinion | Why Supreme Court Justices Need Term Limits - The New York Times

Opinion | Why Supreme Court Justices Need Term Limits - The New York Times

By Rosalind Dixon

Dr. Dixon is a law professor and testified before the Supreme Court Commission in July 2021.

The Presidential Commission on the Supreme Court recently issued its final report, calling for a range of procedural changes to how the court operates — most notably, the introduction of term limits for the justices. It pointed to 18-year terms as the leading model for such change. Ideally, it suggested, the states would ratify a constitutional amendment, but some of the commissioners believed this could also be attempted through an act of Congress.

Other dissenting members of the commission think that term limits do not go far enough to curb an institution they view as hyperpartisan and as having lost public trust (the court’s approval rating has plummeted, according to Gallup, to its lowest point since 2000, when the poll began). They suggested that what was needed was an increase in the size of the court — to rebalance it in a more bipartisan direction.

More is needed to address the court’s current composition and approach — not by expanding the size of the court but through even more powerful, that is, shorter, term limits.

Eighteen years is too long to address the crisis in Supreme Court functioning and legitimacy. We need term limits that start to bite much sooner — after 12 years.

Thursday, December 30, 2021

OTHERWISE: The New Pro-Majoritarian Powers - California Law Review

By Nicholas Stephahopoulod

OTHERWISE: The New Pro-Majoritarian Powers - California Law Review: This article is one of those pieces that reminds us that there are powers lying fallow in the plain language of laws the meaning of which is..r

The New Pro-Majoritarian Powers - California Law Review

This article is one of those pieces that reminds us that there are powers lying fallow in the plain language of laws the meaning of which is a blank canvas on which we have never dared to write. One of them is Section 5 of the 14th Amendment which gives Congress the power to enforce it by "appropriate legislation". That phrase both empowers and limits the judiciary. It limits the judiciary's devices like "strict scrutiny' and empowers the Congress to what it deems appropriate to accomplish the purposes of the 14th Amendment which surely was to uplift the victims of slavery.

Similarly Nicholas Stephanopoulos reads with open eyes Article I, Section 5 of the Constitution, which empowers "each House" of Congress to be “the Judge of the Elections . . . of its own Members.” Together with the Guarantee Clause - Article IV, Section 4 which provides "The United States shall guarantee to every State in this Union a Republican Form of Government".

These two powers - which are lodged in the Congress and the Executive - could be employed to bar the seating of Members chosen by flawed methods such as gerrymandered districts which deprive citizens of their vote's value by isolating them in Districts drawn on party lines. [OTOH see Powell v. McCormack, 395 U.S. 486 (1969)]

Similarly the President could use the powers of office to block electoral abuses such as restrictions on the right to vote.

- GWC

The New Pro-Majoritabranches of government.rian Powers - California Law Review

Nicholas O. Stephanopoulos (Harvard Law School)

This article is a part of the 2020 Jorde Symposium. The other three pieces are linked below:

The New Countermajoritarian Difficulty
Countering the Real Countermajoritarian Difficulty
The Real Enemies of Democracy

In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant voter suppression and gerrymandering, and a Supreme Court happy to greenlight these practices threaten the very notion of majority rule. I share Karlan’s bleak assessment. I’m also skeptical that conventional tools—judicial decisions and congressional statutes—will solve our current problems. So in this response, I explore a pair of less familiar but possibly more potent alternatives: the authority of each chamber of Congress to judge its members’ elections, and presidential enforcement of the Guarantee Clause. These powers are explicitly delineated by the Constitution. They can’t be stymied by either the Senate’s filibuster or the Court’s hostility. And they hold enormous democratic potential, especially if channeled through the procedures I outline.

Linda Greenhouse: Do We Have the Supreme Court We Deserve? - The New York Times

In the last of her biweekly columns on the Supreme Court, Linda Greenhouse's answer is NO.

Greenhouse has been writing about the court for over forty years in the pages of the NY Times. - GWC

Opinion | Do We Have the Supreme Court We Deserve? - The New York Times

By Linda Greenhouse

***Yet what we see from the court is not humility but, to put it politely, a lack of situational awareness. Polls consistently show that a majority of Americans oppose overturning Roe v. Wade, something the court has given every indication that it will do within the next six months. Three-quarters of respondents in one recent poll said the abortion decision should be left to women and their doctors. (That was also the view of a majority of the public in a Gallup poll released in the summer of 1972, shortly before the court issued its decision in Roe.)

Hundreds of pages of briefing in the Mississippi abortion case that was argued this month failed to unearth a single reason other than “because we want to and because we can” for overturning a 49-year-old precedent that the court reaffirmed in crucial respects two decades later in the carefully considered compromise that was the Casey decision. (All five members of the Casey majority were appointed by Republican presidents, just as are all those who stand on the verge of repudiating that same precedent today.)

It is now four months and counting since the court permitted the obviously unconstitutional Texas vigilante law, known as Senate Bill 8, to all but shut down abortion in the state, a situation the 5-to-4 majority has refused to rectify. Instead, the court made a show of expediting the S.B. 8 argument in early November and then issued a Potemkin village-like opinion that resulted only in pushing a resolution further into an unknown future.

Crisis of Command: The Pentagon, The President, and January 6//Goodman and Hendrix //Just Security

Crisis of Command: The Pentagon, The President, and January 6

By Ryan Goodman and Justin Hendrix

One of the most vexing questions about Jan. 6 is why the National Guard took more than three hours to arrive at the Capitol after D.C. authorities and Capitol Police called for immediate assistance. The Pentagon’s restraint in allowing the Guard to get to the Capitol was not simply a reflection of officials’ misgivings about the deployment of military force during the summer 2020 protests, nor was it simply a concern about “optics” of having military personnel at the Capitol. Instead, evidence is mounting that the most senior defense officials did not want to send troops to the Capitol because they harbored concerns that President Donald Trump might utilize the forces’ presence in an attempt to hold onto power.

According to a report released last month, Christopher Miller, who served as acting Secretary of the Defense on Jan. 6, told the Department’s inspector general that he feared “if we put U.S. military personnel on the Capitol, I would have created the greatest Constitutional crisis probably since the Civil War.” In congressional testimony, he said he was also cognizant of “fears that the President would invoke the Insurrection Act to politicize the military in an anti-democratic manner” and that “factored into my decisions regarding the appropriate and limited use of our Armed Forces to support civilian law enforcement during the Electoral College certification.”

Miller does not specify who held the fears that Trump would invoke the Insurrection Act, and he wasn’t asked by Congress. However, it’s now clear that such concerns were shared by General Mark Milley, Chairman of the Joint Chiefs of Staff, as well as former CIA Director and at the time Secretary of State Mike Pompeo. Before Nov. 3, Milley and Pompeo confided in one another that they had a persistent worry Trump would try to use the military in an attempt to hold onto power if he lost the election, the Washington Post’s Carol Leonnig and Philip Rucker reported. “This military’s not going to be used,” Milley assured Pompeo.

After Trump issued a Dec. 19, 2020 call to action to his supporters to come to DC to protest the certification of the electoral college vote on Jan. 6 (“Be there, will be wild!”), “Milley told his staff that he believed Trump was stoking unrest, possibly in hopes of an excuse to invoke the Insurrection Act and call out the military,” and that he sought to stay ahead of any effort by the President to use the military in a bid to stay in office, Leonnig and Rucker write.

Wednesday, December 29, 2021

Symposium on Cass Sunstein and Adrian Vermeule’s “Law and Leviathan: Redeeming the Administrative State” Archives - Yale Journal on Regulation

Symposium on Cass Sunstein and Adrian Vermeule’s “Law and Leviathan: Redeeming the Administrative State” Archives - Yale Journal on Regulation

NOTICE & COMMENT

Symposium on Cass Sunstein and Adrian Vermeule’s “Law and Leviathan: Redeeming the Administrative State”

NOTICE & COMMENT

The Limitations of Law and Leviathan, by Kristin E. Hickman

*This is the tenth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. In Law and Leviathan: Redeeming the Administrative State, Cass Sunstein and Adrian Vermeule offer what must be described as a fairly rosy account of […]

NOTICE & COMMENT

Defensive Crouch Administrativism, by Jonathan H. Adler

*This is the ninth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. The administrative state is under siege. In Law & Leviathan: Redeeming the Administrative State, Professors Cass Sunstein and Adrian Vermeule attempt a rescue. In […]

NOTICE & COMMENT

What Can Philosophy Teach Us About Administrative Law?, by Aditya Bamzai

*This is the eighth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. Law and Leviathan is a work that seeks to connect abstract principles of political philosophy with concrete developments in administrative law doctrine. I find […]

NOTICE & COMMENT

Applied Jurisprudence?, by Matthew Lewans

*This is the seventh post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. When Thomas Hobbes published Leviathan in 1651, the bloody Civil War between Royalists and Parliamentarians had just concluded and the need to restore legal […]

NOTICE & COMMENT

The Procedural Morality of Administrative Law—To the End of the Common Good?, by Jennifer Mascott

*This is the sixth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. Adrian Vermeule and Cass Sunstein’s recent feat in Law & Leviathan is thought-provoking and builds on their past prolific contributions to administrative law. The […]

NOTICE & COMMENT

The APA, Due Process, and the Limits of Textualist Positivism, by Emily S. Bremer

*This is the fifth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. In their book, Law and Leviathan, Cass Sunstein and Adrian Vermeule seek to “recover and renew the force” of a collection of natural or […]

NOTICE & COMMENT

I’m Still Worried: A Post on Law and Leviathan, by Nicholas Bagley

*This is the fourth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. Law and Leviathan is a comforting read. The modern regulatory state, Cass Sunstein and Adrian Vermeule tell us, is not in tension with the […]

NOTICE & COMMENT

A Fuller Picture of Internal Morality, by Mila Sohoni

*This is the third post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. In Law and Leviathan, an expertly written account of contemporary administrative law, Cass Sunstein and Adrian Vermeule show us how to fight a theory […]

NOTICE & COMMENT

Putting Lon Fuller to Work in the Trenches, by Kevin M. Stack

*This is the second post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. At the heart of Cass Sunstein and Adrian Vermeule’s insightful and important book, Law and the Leviathan: Redeeming the Administrative State, is a claim […]

NOTICE & COMMENT

Law & Leviathan: The Best Defense?, by Ronald M. Levin

*This is the first post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. In their recent book Law & Leviathan, Cass Sunstein and Adrian Vermeule unveil a novel and provocative approach to legitimating the modern administrative state. […]

NOTICE & COMMENT

Symposium Introduction: Law and Leviathan: Redeeming the Administrative State

Starting today, for the next two weeks, the Notice and Comment blog will run a symposium on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. (2020: Harvard University Press.) The posts will be available here. The book is a concise and incisive defense of the internal legal morality of […]

A Catholic battle not for the faint of heart // Massimo Faggioli

Pope Francis in Krakow on July 30, 2016. (Photo by Alik Keplicz/AP)

A Catholic battle not for the faint of heart

By Massimo Faggioli (Villanova)

By Massimo Faggioli | United StatesAdd to your favourite storiesFirst published on October 5, 2021.Pope Francis knows how to cause a stir with his statements.But even when the current Bishop of Rome says things that should not be newsworthy, they are objectively relevant in the context of the embattled Catholic Church of today.

One example: the pope recently said that the Second Vatican Council (1962-65) shaped his theological and pastoral vision. He did so in the preface of a new book called, Fraternità segni dei tempi, which was co-written by Cardinal Michael Czerny, one of his fellow Jesuits and top Vatican official, and Christian Barone, an Italian priest and theologian.

The English translation is called, Siblings All, Sign of the Times: The Social Teaching of Pope Francis. It will be published in 2022 by Orbis Books.

Greater insistence on the centrality of Vatican II "It is necessary to make more explicit the key concepts of Vatican Council II, the foundations of its arguments, its theological and pastoral horizon, the arguments and the method it used," Francis writes in the preface. This was not an off-the-cuff remark, but a written statement in a book published by the Vatican's printing house and reported on September 28 by its official media outlet, Vatican News.

Why is the pope's statement on Vatican II so newsworthy? T he organized opposition to Francis did not react as usual by alleging that the Jesuit pope had said something unorthodox or had yielded to the liberal and secularist spirit of the time. That's not because it would be very conspicuous for Catholic leaders -- cardinals and bishops especially -- to distance themselves from the Church's 21st ecumenical council.

Just the opposite.

Francis vs. the anti-Vatican II crowd

They didn't need to react. It is enough to do a search online in conservative and traditionalist circles, as well as their publications and theological self-help websites, to get an idea of the magnitude of the problem. These groups simply identity Vatican II with selling out Catholic identity and weakening the sense of the tradition.

Other times, they use Vatican II as a synonym for relativism, neo-paganism and heresy.It's not just social media or EWTN. (I am not linking to those websites because they don't deserve free advertisement).

Pope Francis has done -- and is doing -- much to change this situation.It is impossible to ignore how much impact this pontificate's words and deeds have had in restoring the place and reputation that Vatican Council II deserves in the discourse in the Church, but also in the discourse on the Church in mainstream media.

An uphill battle for the coming generation

Most recently, his "motu proprio" Traditionis custodes -- which reversed Benedict XVI's decision in 2007 to universalize use of the "extraordinary form" (pre-Vatican II) of Mass in the Roman Rite -- is one of the most important acts in the post-conciliar Church to reinforce the binding value of the teaching of the Second Vatican Council.

But it's an uphill battle that at least another generation of Catholics will have to fight. It suffices to look at the curricula in the seminaries and the formation programs in many Catholic institutions to see that Pope Francis' language about and references to Vatican II are the exception, not the norm.

The problem here is not really the absence of the term "Vatican II". It is the absence of that theological depth in favor of a mix of glossy apologetics, saccharine devotionalism and motivational confessionalism. In other cases, even in supposedly liberal Catholic schools of theology, Vatican II is no longer part of the curriculum. It has been pushed aside in favor of more fashionable trends.

The deliberate sidelining of the Council

At least in the United States, it is now rare to find a graduate student in Catholic theology that has a basic grasp of Vatican Council II, its history and theology. Paradoxically, it is less rare to find some knowledge of the Council among Catholic undergraduates. From what I have seen, they are still learning something about Vatican II in Catholic high schools, but then it gets lost among those who continue to study theology. They almost never hear anything about the Church's most recent Council in their parishes.

READ MORE HERE

Tuesday, December 28, 2021

OSHA withdraws Healthcare Workers Vax Temporary Standard

An Emergency Temporary Standard has a life of only six months. Since OSHA was not able to complete the Notice and Comment period it is compelled to withdraw the temporary standard compelling vaccination and/or testing of healthcare workers. They agency will continue to work to adopt a special rule for healthcare workers.

This action does not affect the Department of Health and Human Services ETS issued by the Centers for Medicare and Medicaid Services. That will be argued before the Supreme Court - along with the broader OSHA Temporary Standard - on January 7, 2022.

COVID-19 Healthcare ETS | Occupational Safety and Health Administration

OSHA COVID-19 Healthcare ETS

(December 27, 2021)

On June 21, 2021, OSHA adopted a Healthcare Emergency Temporary Standard (Healthcare ETS) protecting workers from COVID-19 in settings where they provide healthcare or healthcare support services. 86 FR 32376. Under the OSH Act, an ETS is effective until superseded by a permanent standard – a process contemplated by the OSH Act to occur within 6 months of the ETS’s promulgation. 29 U.S.C. 655(c).

OSHA announces today that it intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking. However, given that OSHA anticipates a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act, OSHA also announces today that it is withdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions, 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect. These provisions were adopted under a separate provision of the OSH Act, section 8, and OSHA found good cause to forgo notice and comment in light of the grave danger presented by the pandemic. See 86 FR 32559.

With the rise of the Delta variant this fall, and now the spread of the Omicron variant this winter, OSHA believes the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them. Given these facts, and given OSHA’s anticipated finalization of this rule, OSHA strongly encourages all healthcare employers to continue to implement the ETS’s requirements in order to protect employees from a hazard that too often causes death or serious physical harm to employees.

As OSHA works towards a permanent regulatory solution, OSHA will vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards, to help protect healthcare employees from the hazard of COVID-19. The Respiratory Protection Standard applies to personnel providing care to persons who are suspected or confirmed to have COVID-19. OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards. Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.

OSHA believes the terms of the Healthcare ETS remain relevant in general duty cases in that they show that COVID-19 poses a hazard in the healthcare industry and that there are feasible means of abating the hazard. OSHA plans to publish a notice in the Federal Register to implement this announcement.

Jan. 6 committee: Walt Shaub on Washington’s accountability gap.

On a recent episode of Amicus, Dahlia Lithwick spoke with Walt Shaub, former director of the Office of Government Ethics, about recent developments from the Jan. 6 commission and Washington’s accountability gap. A portion of their conversation, which has been condensed and edited for clarity, has been transcribed below.

Dahlia Lithwick: Let’s just jump in on this split screen of Jan. 6. You have been incredibly critical of the slaps on the wrists that have been meted out to the lowest-level coup participants, while leadership, really from the top down, has been almost completely immune, not just from prosecution, but even from scrutiny. It seems as though the reporting last week maybe changed that. The New York Times reported that members of the Freedom Caucus were deeply involved in efforts to pressure the Justice Department to pressure state of officials to pressure Mike Pence himself to overturn the election results. We’re actually seeing texts that were sent to Mark Meadows on the day of Jan. 6 that seem to implicate kind of everybody. It now really feels like the calls were quite literally coming from inside the house. Is this different, has this changed, or are we just too far gone along the path of normalizing Jan. 6 to care?

Monday, December 27, 2021

A new era of defiance: 5th Circuit may ask Texas Supreme Court to pass on SB8

Update - Whole Women's Health has moved for a Writ of Mandamus to remand the case to the District Court, rather than certify it to the Texas Supreme Court as the 5th Circuit suggests.

Having found a statute unconstitutional, it is elementary that a court has power to enjoin all those charged with its execution. Normally, these are officers of the executive branch, but when the legislature itself seeks to act as executor of its own laws, then, quite obviously, it is no longer legislating and is no more immune from process than the administrative officials it supersedes. As Chief Justice Marshall said in Marbury v. Madison, 5 U.S. 137: "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing [an injunction] is to be determined."

Bush v. Orleans Parish and State of Louisiana, 188 F. Supp. 916 (E.D. La. 1960)

RIVES, Circuit Judge, and CHRISTENBERRY and WRIGHT, District Judges.

Affirmed, 368 U.S. 908 sub nom Legislature of Louisiana v. United States

The Fifth Circuit Court of Appeals, led by the Republican Judge John Minor Wisdom, was once an ally of the Supreme Court's civil rights rulings. It was a bastion of support for the effort to dismantle the southern system of legal racial segregation of public school. And in Bush v. Orleans a three judge District Court (28 USC 2281) voided an "interposition law" which declared that school desegregation orders "based solely and entirely on the the pronouncements of Brown v. Topeka Board of Education," are "null, void and of no effect as to the State of Louisiana."

The Brown v. Board of Education mandate to cease intentional legal segregation was for a decade met by massive resistance by southern legislators, governors, and local governments. Statutorily mandated or sanctioned racial segregation was finally defeated by an alliance of the Supreme Court and the Congress which passed the Civil Rights Act of 1964. After that foot dragging and indifference perpetuated racial segregation of southern public schools. And in 1974 in Milliken v. Bradley the Supreme Court abandoned the effort in the north - refusing to cross the City-suburb line to remedy racial segregation.

But now a new era of state resistance and defiance has emerged, focused on the constitutional right to elect abortion. The State of Texas has, via SB 8, in the spirit of Terry v. Adams, 345 U.S. 361 [1953] (frustrating African American voting rights) successfully evaded a constitutional command by "subbing out" enforcement of a plainly unconstitutional law to private parties. That there is a constitutional personal right to elect abortion was uncontested fact. Until the point of viability neither federal nor state government may place any "undue burden" on a woman's exercise of that right. Until now. The Supreme Court - a majority hostile to the right - has allowed Texas to outlaw abortion beyond six weeks of gestation. The possible remedy in Whole Women's Health v. Jackson was limited to continuing a pre-enforcement action against the state's medical licensing officers.

By remanding to the Circuit Court of Appeals, rather than the District Court, the Supreme Court, as feared, opened the door to substantial further delays in vindication of the right the court itself has recognized for nearly half a century. By placing the matter in the hands of the overwhelmingly conservative 5th Circuit Court of Appeals a return to the Judge who held the Texas law unconstitutional delay seemed inevitable.

Now a panel of the New Orleans based appellate court has set January 7 for oral argument to discuss whether the plaintiff medical clinic shall be compelled to ask the Texas Supreme Court for its opinion whether the law knowns by its pre-passage acronym SB-8 satisfies Texas state law. Enforcement of the right will be further delayed if the Texas high court accepts the certified question and decides whether SB 8 itself complies with the Texas state Constitution and laws.

Circuit Judge Stephen A. Higginson (a 2011 Obama appointee) has filed a memorable and powerful dissent. He sounds an alarm loud enough that it raises the likely vain hope that the Whole Women's health challenge will return to the District Judge Robert Pitman who granted the plaintiff medical clinic a preliminary injunction against Texas law SB-8 which deputized private litigants to seek large statutory rewards for reporting abortions barred by the state after six weeks gestation.

- GWC

54965th Circuit en bank whole-woman-s-health-v-jackson-ca5-certification-argument-scheduling-order.pdf

Stephen A. Higginson, Circuit Judge, dissenting:

I respectfully disagree with the majority’s decision to hear oral argument on this remand from the United States Supreme Court.

I do not read the Supreme Court’s judgment [in Whole Women's Health v. Jackson], especially in a case of this magnitude and acceleration, to countenance such delay. I would immediately remand the case to the district court, denying without oral argument the defendants’ motion to certify [the question to the Texas Supreme Court] and alternative motion to set a briefing schedule.

However, having been unpersuasive, upon an appropriate motion, I would preliminarily enjoin the defendant licensing officials from enforcing S. B. 8 against the plaintiffs, in accordance with the Supreme Court’s near unanimous holding that “sovereign immunity does not bar the [plaintiffs’] suit against these named defendants at the motion to dismiss stage.” Whole Woman’s Health v. Jackson, No. 21-463, 2021 WL 5855551, at *8 (U.S. Dec. 10, 2021).

I would deny the defendants’ motion to certify. I am confident that the Court did not intend an unintelligible perhaps when it concluded that the plaintiffs’ suit may proceed against four “executive licensing official[s] who may or must take enforcement actions against the [plaintiffs] if they violate the terms of Texas’s Health and Safety Code, including S. B. 8.” Jackson, 2021 WL 5855551, at *8 (citing Tex. Occ. Code § 164.055(a)).

Vaccine mandates and SCOTUS: Does religious liberty trump states’ interest in stopping the spread of COVID-19?//SLATE // dahlia Lithwick

Vaccine mandates and SCOTUS: Does religious liberty trump states’ interest in stopping the spread of COVID-19?

By Dahlia Lithwick

First, the good news: It does not appear that a majority of the Supreme Court is prepared to find that religious liberty claims require an exemption to COVID vaccine mandates everywhere and anywhere. This is profoundly good news given that COVID rates appear to be spiking yet again as we prepare to enter the holiday season. Twice now, in six weeks, a six-justice majority has flicked away claims from religious health care workers who assert a First Amendment right to refuse vaccination against the coronavirus. Two of these justices, Brett Kavanaugh and Amy Coney Barrett, have certainly left the door open to changing their minds. For the time being, though, these two junior justices appear to be unwilling to exacerbate the pandemic in the name of religious liberty.

Now the bad news: Three justices, led by Neil Gorsuch, say there is a First Amendment right to refuse the vaccine on religious grounds. Worse, they are defending this position with dangerously broad and overheated rhetoric that undermines the constitutional foundation of all vaccine mandates. Gorsuch, along with Justices Clarence Thomas and Sam Alito, has rejected the principle that preventing the spread of communicable diseases qualifies as an inherently compelling state interest. And he is fighting to transform litigation over religious exemptions into an elaborate game of chutes and ladders the government will always lose. These radical and polarizing arguments may have alienated Kavanaugh and Barrett for now. But they are swiftly gaining purchase among extremist lower court judges, who are seizing on Gorsuch’s dissents to swat down mandates—all while toppling a pillar of public health in the process.

***

Gorsuch’s theory may not have won over a majority of the Supreme Court just yet. But it is already blazing its way through the lower courts as a clarion cry on behalf of religious dissenters who believe they are being singled out for hostile treatment by state officials seeking to do nothing more than save lives. Three different judges appointed by Donald Trump have already approvingly cited this passage in decisions halting federal vaccines mandates. Their opinions are also bristling with hostility toward government efforts to slow down the spread of a disease that has now claimed 800,000 American lives, as well as unscientific skepticism toward the very efficacy of vaccines. (“One could query how an ‘emergency’ could prompt such a ‘deliberate’ response,” wrote one Trump judge; “if boosters are needed six months after being ‘fully vaccinated,’ then how good are the COVID-19 vaccines, and why is it necessary to mandate them?” asked another.)

One lower court judge has taken Gorsuch’s ideas a step further. Dissenting this week from a decision allowing United Airlines’ COVID-19 vaccine mandate for employees to remain in place, Judge James Ho of the 5th U.S. Circuit Court of Appeals made Gorsuch sound almost reasonable. In a six-page dissent, Ho, a Trump appointee, described United’s vaccine mandate as proof of a “calloused approach to” and “apparent disdain for” people of faith. Ho’s dissent was full of his usual Newsmax flourishes: “To hypothesize that the earthly reward of monetary damages could compensate for these profound challenges of faith is to misunderstand the entire nature of religious conviction at its most foundational level.” He noted that “as if all this weren’t enough, to top it all off, United is forcing this crisis of conscience on the eve of Christmas—one of the holiest times of the year, the season when Christians cherish devoting their hearts and souls to both faith and family alike, not to choosing between the two.”

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