By a vote of 6 to 3 (liberals in dissent), the Court granted the stay of the OSHA mandate. https://aboutblaw.com/1fH  By a vote of 5 to 4 (Thomas, Alito, Gorsuch, ACB in dissent), the Court granted the Biden Administration’s request for a stay of the injunctions against the HHS mandate. https://aboutblaw.com/1fI  I’ve done a quick thread on the OSHA case 

Print allIn new windowSCOTUS ruling on OSHA vaccine mandate; law prof Eric Claeys on Roe’s viability holding; Ed Whelan <ewhelan@eppc.org> Unsubscribe2:20 PM (1 hour ago)to meWithin the last hour or so, the Court issued its rulings on the stay requests in the OSHA and HHS vaccine mandate cases. By a vote of 6 to 3 (liberals in dissent), the Court granted the stay of the OSHA mandate. https://aboutblaw.com/1fH  By a vote of 5 to 4 (Thomas, Alito, Gorsuch, ACB in dissent), the Court granted the Biden Administration’s request for a stay of the injunctions against the HHS mandate. https://aboutblaw.com/1fI  I’ve done a quick thread on the OSHA case here.https://twitter.com/EdWhelanEPPC/status/1481713572229042176 Here are some recent posts from NRO’s Bench Memos:Law Prof Eric Claeys on Roe’s Viability HoldingBy ED WHELANJanuary 12, 2022 4:44 PMRoe v. Wade and Planned Parenthood v. Casey have been widely understood to forbid prohibitions on abortion before viability. That is so for one very good reason: that is exactly what they say and hold.In a forthcoming law-review article and an ongoing series of guest blog posts at the Volokh Conspiracy, law professor Eric Claeys systematically dismantles an alternative theory of Roe and Casey that Chief Justice Roberts “seemed to suggest” at oral argument in Dobbs v. Jackson Women’s Health Organization: namely, that Roe and Casey instead entitle women only to “fair opportunities to obtain abortions sometime during their pregnancies.” (The quoted language is Claeys’s interpretation of what he calls the Chief’s “exploratory theory.”) If this reconception of Roe and Casey were sound or even plausible, the Court could vote to uphold Mississippi’s ban on abortion after 15 weeks of viability without also overruling Roe and Casey.As Claeys compellingly and exhaustively demonstrates, this alternative theory badly misreads Roe and Casey. In his post today, Claeys reminds readers that Roe declared a statute unconstitutional on its face. He explains how “Roe’s judgment relied on a rule of decision about overbreadth” that “made the standard of viability necessary—in the sense of indispensable—to the declaratory judgment delivered in Roe.” An excerpt:In Roe the Court noted, with approval, that in abortion challenges lower federal courts had been applying the overbreadth doctrine. Later, in the part of the opinion most necessary to the Court’s judgment (Part X), the Court “measured” the Texas prohibitions “against the standards” it had drawn via its trimester framework. The Court found that the statute “makes no distinction between abortions performed early in pregnancy and those performed later.” On that basis, the Court concluded that the key statute “sweeps too broadly” and “cannot survive the constitutional attack made upon it.” Although the Court could have been a lot more direct about the rules it was applying, “sweeps too broadly” makes clear that the Court was conducting an overbreadth analysis. As yesterday’s post showed, the Court demonstrated that the Texas statutes under challenge threatened a constitutional right it had just announced. The Court conducted the sort of comparison Broadrick [v. Oklahoma (1973)] called for when it observed that the key Texas statute prohibited both abortions “early in pregnancy and those performed later.” The abortions “early in pregnancy” were the constitutionally-protected abortions chilled by the key statute; the ones “performed later” were the ones that the statute could prohibit constitutionally. But how did the Court know which intended abortions were protected and which ones were not? From the passages of Roe specifying abortion rights via the police powers. And in particular, from the passages declaring that fetuses’ and states’ interests in fetal life do not become “compelling” until viability. And that account should make clear how deeply intertwined viability is with Roe‘s judgment…. In Roe, it made not one difference that Roe didn’t allege anything about whether her pregnancy was before or after the viability threshold. Since overbreadth doctrine applies to abortion challenges, the Court could declare a restriction on abortion unconstitutional on its face, by roving to find a substantial number of situations in which the restrictions would chill the exercise of abortion rights. In short, … [Roe‘s overbreadth] proposition applies black-letter overbreadth doctrine to a state law restricting abortion rights: Such a law is unconstitutional on its face if it restricts pregnant women’s federal substantive due process abortion rights unconstitutionally, and if the number of situations in which it applies unconstitutionally seems substantial in relation to the number of situations in which the law could restrict abortion rights constitutionally. That proposition also makes viability necessary—indispensable, really—to Roe‘s holding. Viability was the proxy the Court used to classify different possible applications of the challenged statutes as constitutional or unconstitutional. Since viability was the sorting mechanism the Court used to conduct overbreadth analysis, it is part of the reason for decision about overbreadth.Claeys soundly concludes that there is no middle ground in Dobbs between overruling Roe and Casey, on the one hand, and re-affirming them, on the other. If the Court is to allow the Mississippi 15-week law to operate, it must overrule Roe and Casey.This Day in Liberal Judicial Activism—January 13By ED WHELANJanuary 13, 2022 8:00 AM2019—Federal district judge Haywood S. Gilliam Jr. enters an order (in California v. HHS) blocking the Trump administration from implementing its rules creating a religious and moral exemption to the HHS contraceptive mandate.A year and a half later, in Little Sisters of the Poor v. Pennsylvania, the Supreme Court will rule by a 7-2 vote that the Trump administration had authority to promulgate the rules.This Day in Liberal Judicial Activism—January 12By ED WHELANJanuary 12, 2022 8:00 AM1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker. Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no.Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.”
This Day in Liberal Judicial Activism—January 11By ED WHELANJanuary 11, 2022 8:00 AM1954—President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice. Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition. But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.2016—When is discrimination on the basis of sex just fine? When it operates against men to produce welcome results. Such is the lesson of the Fourth Circuit’s ruling (in Bauer v. Lynch) against an FBI trainee, Jay J. Bauer, who complained that the FBI discriminated against him on the basis of sex.Bauer failed the FBI’s physical-fitness test (PFT) when he fell one push-up short of the minimum of 30 required for men. For women, the push-up minimum was only 14 (and the other thresholds were also easier to meet). So Bauer sued on the ground that the differential standards for men and women violated Title VII’s basic ban on discrimination on the basis of sex as well as its specific ban on the use, on the basis of sex, of “different cutoff scores for … employment related tests.” The federal district court granted summary judgment in his favor.But the Fourth Circuit panel of Obama and Clinton appointees somehow sees things very differently. The Fourth Circuit accepts the Obama administration’s argument that the “PFT’s gender-normed standards actually require the same level of fitness for all Trainees” because “equally fit men and women possess innate physiological differences that lead to different performance outcomes.” Therefore, the PFT standards “do not treat the sexes differently.”The Left seems to invoke “innate physiological differences” between the sexes only when doing so favors women. The “gender-normed standards,” by their very nature, “treat the sexes differently.” That is their very purpose. Further, they impose a differential “cutoff” on the basis of sex that the text of Title VII specifically forbids. This Day in Liberal Judicial Activism—January 10By ED WHELANJanuary 10, 2022 8:00 AM2006—Less than eight years out of law school, Berkeley law professor Goodwin Liu submits his written testimony to the Senate Judiciary Committee opposing the confirmation of Supreme Court nominee Samuel Alito. Liu concludes his testimony with this demagogic rant:Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination, and where police may search what a warrant permits, and then some.Nominated a mere four years later by President Obama to a Ninth Circuit seat, Liu acknowledges at his confirmation hearing only that his testimony against Alito used “perhaps unnecessarily flowery language.” Pressed further in post-hearing questions, Liu evidently finally perceives it as in his interest to offer an apology of sorts, though he can’t do so without trying to depict himself as a victim:[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now.In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But California governor Jerry Brown will then appoint Liu to the state supreme court.In 2018, a joint project of Berkeley Law’s California Constitution Center and the Hastings Law Journal will rank Liu as the most liberal justice of the California supreme court, both overall and in each of five subcategories. This Day in Liberal Judicial Activism—January 9By ED WHELANJanuary 9, 2022 8:00 AM1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion). Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague.This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute.JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.” This Day in Liberal Judicial Activism—January 8By ED WHELANJanuary 8, 2022 8:00 AM2010—Solicitor General Elena Kagan personally assigns her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal promptly informs the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will take the lead, and that “we will bring Elena in as needed.” Two months later, with litigation impending, Kagan and Katyal consult on who should attend a White House meeting on what Katyal calls “litigation of singular importance.”But in connection with (and presumably to facilitate) her nomination to the Supreme Court in May 2010, Kagan will nurture the notion that she had somehow (for utterly inexplicable reasons) “been walled off from Day One” from the litigation over Obamacare, and, after her appointment to the Court, she will decline to recuse herself from deciding cases arising from that initial round of litigation in which she took part. Instead, she will provide the decisive fifth vote in NFIB v. Sebelius (2012) rejecting the constitutional challenge to Obamacare’s individual mandate.2020—In a video that she sends to San Francisco’s left-wing district attorney Chesa Boudin for his swearing-in, Justice Sonia Sotomayor somehow sees fit to tell Boudin “how much I admire you,” to praise his “strength of character and moral composure,” to call him “a great beacon to many,” and to say that San Francisco “will be so very well served” by him.Boudin will quickly earn a reputation for being soft on crime and for being an incompetent manager. Two of his own top prosecutors will resign from his office in October 2021 and join the campaign to remove him from office via a recall election in June 2022. This Day in Liberal Judicial Activism—January 7By ED WHELANJanuary 7, 2022 8:00 AM 2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito. (See here for more.)   M. Edward Whelan III
Distinguished Senior Fellow andAntonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
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About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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