There is only one month left until the end of the semester. Joan Biskupic has a special privilege On the deliberations behind the scenes Moyle v. United StatesKudos to Joan for getting the scoop, which is very rare in recent years, and she hints that there will be a “series,” so maybe we’ll see part II tomorrow.
Again, the usual caveats about Supreme Court reporting: We’ll assume that Judge Biskupic conveyed exactly what she was told, but we’ll also assume that the various leaks she received were intended to advance certain interests. In Washington DC, information is power, and those who wield it do so to achieve specific goals. Never forget that. There’s a reason why President Biden announced he was dropping out of the race in X after telling only a few people. Biden, or at least his team, managed to pull off the DC-impossible trick of keeping secrets.
For Review MoyleRead my 7 posts (1, 2, 3, 4, 5, 6, 7).
beginningBiskupich explains his sourcing:
This exclusive series on the Supreme Court is based on CNN sources inside and outside the court with knowledge of the deliberations.
In the past, Biskupic has attributed his material to the judge, but this time the sources are a bit unclear: “internal and external sources.” We’re probably talking about double or even triple hearsay: the judge told someone inside the court something, who told it to someone outside the court. DobbsThe Supreme Court’s sieve is leaking again. Chief Justice Roberts should dust off his retirement letter.
Number 2Here’s how the extension was granted in January: Biskupich revealed that the vote was 6-3.
Voting records are not publicly available, but CNN learned that the vote was split 6-3, with all six conservative senators appointed by Republicans supporting Idaho over the objections of the state’s three liberal senators appointed by Democrats.
As expected, Justice Barrett cast the deciding vote. At the time, she was convinced by Idaho’s arguments.
[Justice Barrett] Ultimately, she called the decision to accept the lawsuit a “miscalculation” and suggested she was persuaded by Idaho’s argument that its emergency rooms would become “federal abortion zones governed not by state law but by physician discretion enforced by a U.S. mandate to provide abortions on demand.”
However, Judge Barrett later changed her mind.
The thirdit was oral argument that crystallized that change.
But over the next six months, a combination of leading conservative concerns and the rare influence of liberal justices changed the course of the case, sources told CNN.
Between April 24th hearingThere are signs that conservatives are splitting apart.
justice Amy Coney BarrettBarrett, who voted to allow Idaho’s ban to go into effect, took issue with the state’s lawyers’ arguments about the ban’s impact on women’s reproductive health complications. She said she was “shocked” by the lawyers’ vagueness about whether certain serious complications could be treated in an emergency room. To some extent, Barrett’s concerns overlapped with those of three female liberals, who pointed to a dilemma for pregnant women and their doctors.
In this post, I highlighted how Justices Sotomayor and Kagan engineered Judge Barrett’s overturning, and my theory is roughly in line with Biskupic’s explanation.
the 4thBiskupic said there was no clear majority opinion at the meeting.
The first twist happened quickly. Oral arguments in late Aprilwhen the justices voted privately on whether to settle the standoff between the state of Idaho and the Biden administration…there was suddenly no clear majority in favor of Idaho, sources said. In fact, there was no clear majority on any resolution.
As a result, Chief Justice John Roberts, violating the usual practice in cases following oral argument, chose not to give the court an opinion to anyone.
Time Moyle When the opinion was leaked, people wondered who assigned the majority opinion, and eventually the answer came back that Roberts didn’t assign it to anyone.
Instead, as best I can determine from Biskupic’s reporting, Chief Justice Roberts, Justice Kavanaugh and Justice Barrett co-wrote the decision, seeking to preserve the votes of Justices Sotomayor and Kagan.
Judging solely from the public debate, it seemed likely that the court’s four women would vote against Idaho, while the remaining five conservative members, all men, would vote in favor of the state and its anti-abortion law.
But in a secret vote among the justices two days later, Roberts and Justice Brett Kavanaugh broke down gender divisions and signaled their willingness to let the case go unresolved.
FifthBiskupic hints that there was a lot of negotiation going on. In essence, Roberts, Kavanaugh and Barrett had to keep Kagan and Sotomayor on board. Why? I don’t know. There’s no way those two would have voted to uphold the injunction. So it was necessary to have five votes to lift the injunction. And Kagan and Sotomayor ended up only agreeing with part of the majority opinion. Did that really matter? The outcome would have been the same if there had been three votes for the injunction and three votes to uphold the 9th Circuit’s decision. Appearances matter.
Biskupic wrote:
Instead, after a series of negotiations, A compromise that would limit Idaho’s law And it temporarily blocks the Supreme Court from further restricting access to abortion. A final decision in late June would mark a departure from this year’s pattern of conservative dominance. [Roberts and Kavanaugh] He worked with Barrett to draft a decision dismissing the case as “frivolously admitted.”
Biskupic details how Barrett changed her mind. Here, she comes across as very open-minded. Moreover, this kind of explanation suggests that she will be skeptical of the claims of Republican-backed state attorneys general going forward. We don’t know who leaked this information, but it definitely paints Barrett in a certain light.
Barrett came to believe that the case should never have been heard until lower court judges had resolved discrepancies about when doctors can perform emergency abortions even when the woman’s life is not at risk. … She ultimately deemed the acceptance of the case a “miscalculation” and suggested that she was persuaded by Idaho’s argument that its emergency rooms would be “federal abortion zones governed not by state law but by physician discretion enforced by a U.S. mandate to perform abortions on demand.” She believed this argument was weakened by the U.S. government’s abandonment of abortions for mental health reasons and its insistence that doctors with conscientious objections be exempt.
In essence, Justice Barrett, along with Justices Roberts and Kavanaugh, acknowledged that the original action in favor of Idaho was an error, something the Court is typically loath to admit. They attributed the error to a misunderstanding of the opposing parties’ arguments, but not to the other six justices, who remained adamant about which side should win.
Yes, Roberts and Kavanaugh have changed their minds, but they are just supporting actors here. Barrett takes center stage.
During internal debate from late April through June, the Supreme Court’s three other conservative justices, Samuel Alito, Clarence Thomas and Neil Gorsuch, believed the facts on the ground were clear and that Idaho’s position should still prevail. They said the 1986 EMTALA does not require hospitals to perform abortions and cannot overturn state bans.
Alito, who wrote the 2022 ruling, Dobbs v. Jackson Women’s Health Organization Senator John Biden, who introduced the bill to overturn Roe, asserted that EMTALA’s language is the opposite of what the Biden administration claims: It requires Medicare-funded hospitals to treat “fetuses” rather than abort them.
SixthJustices Alito, Gorsuch and Thomas come across as stubborn, opinionated and uncompromising. No one who supports this trio seems to have spoken to Justice Biskupic. That’s the problem with inside reporting. Sometimes you only get one side of the story.
Because Alito, Thomas and Gorsuch maintained their opposition to the proposed off-ramp, Barrett, Roberts and Kavanaugh needed at least two more votes to dismiss the case as a majority.
Liberal Sen. Sonia Sotomayor and Ms. Kagan were willing to negotiate, but on condition: They could not agree with Ms. Barrett’s explanation of factual inconsistencies and, more importantly, wanted the court to lift its previous order keeping the ban in effect while the case was ongoing.
This was one instance where liberals, usually outnumbered by conservative majorities, gained more bargaining power because of the rift between the camps of Barrett, Roberts and Kavanaugh on the one hand and Alito, Thomas and Gorsuch on the other. Debate raged for weeks over whether to lift the order allowing the ban to go into full effect.
I know Orrin, Will, Sam, and most other law professors would disagree with me on judicial courage, but you don’t have to take my word for it. Look at what Justices Alito, Thomas, and Gorsuch have written. Moyle:
What needs to be said about the question of statutory interpretation has probably been said many times. The question is now more ripe for decision than ever before. It seems that the Court should not merely Lost Will It’s easy to decide Emotional and highly political The question this case raises is, it’s unfortunate.
Today’s decision is puzzling. The Court took the unusual step of granting leave to appeal Idaho’s case before it had even been heard by the Ninth Circuit. I don’t want to tackle it. Ultimately, the case was appealed to the Ninth Circuit Court of Appeals, which will decide the issues that this court is currently deciding. duck.
At the time, I observed:
And why [Roberts, Kavanaugh, and Barrett] Did they lose their will? The suggestion here is that the case is “emotional” and “highly politicized.” Alito is suggesting that Justices Barrett and Kavanaugh changed their minds because abortion is an “emotional” topic and the case has become “politicized.” Alito is accusing Justices Barrett and Kavanaugh of hunkering down and hiding.
Alito, Thomas and Gorsuch have said the same thing before. And they are saying the same thing I am. The conservative trio has had a front row seat to how Justices Barrett and Kavanaugh behave, and they are using the words precisely. Indeed, I think these actions are likely to backfire in the same sense that Justice Scalia alienated Justice O’Connor. But to understand the justices’ behavior, we should look to the clues from behind the red curtain.
Number 7it returns to justice. Moyle When the decision was handed down, I wrote the following about Judge Barrett:
The most important opinion here is Judge Barrett’s opinion. She is the centerpiece of the Supreme Court. And, as I said before, she seems to be still figuring things out as she goes about her job. Moyle The advocate openly expresses regret that the court granted the appeal before the sentence and suspension, not just because the facts had changed, but because the court expedited the process when it should not have done so, and she also seems to resent the state of Idaho for (in her view) overstating the justification for the suspension.
This is almost exactly what Mr. Biskupic wrote. I’ve made this point before, but much of the “inside” information Mr. Biskupic gleaned from his sources is obvious to anyone who reads the court records carefully. I don’t have inside information, nor am I trying to get it. It’s much more fun to shoot in the dark, because there are no limitations on what I can write (as the reader well knows).
Biskupic is a truly informed guess (Deadpool would say “An educated wish(hereafter referred to as “Leak”) spreads their speculation as inside information and asks their source to comment or confirm the leak. From there, the information trickles down.
Finally, Biskupic quotes Kagan’s remarks at the Ninth Circuit conference:
In a wide-ranging speech at a legal conference in Sacramento on Thursday, the liberal Justice Elena Kagan said the court may have learned a “good lesson.” From the Idaho example: “And that could mean that we’re going to have to say on some of these emergency petitions, ‘No, it’s too early. It’s too early. Let’s go ahead and process it.'”
In hindsight, the comment sounds somewhere between a farewell and a complacent remark.