Last year, defenders of discriminatory marriage laws urged the Supreme Court to defer to the judgment of state legislatures that had denied marriage equality to same-sex couples. This year, defenders of restrictive anti-abortion laws designed to shutter abortion clinics are making the same argument, insisting that courts have no warrant to decide whether a state’s abortion law actually serves health-related purposes. This argument works no better a second time around. When the Supreme Court hands down its ruling in this Term’s blockbuster abortion case, the Justices should make clear that courts should not rubberstamp laws that deny women liberty, equality, and dignity.
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"The Supreme Court is going to recognize these decisions for the sham laws that they are," said Elizabeth Wydra, president of the Constitutional Accountability Center. The law's backers "are really just focused on shutting down a woman's constitutional right to choose for herself and really not at all about the health of the woman."
CAC's Elizabeth Wydra appeared on Yahoo! News to discuss the proceedings at the Supreme Court today, where Justice Antonin Scalia currently lays in repose.
Roberts has repeatedly decried perceptions that polarization in the political branches will “spill over” and undermine the court’s stature. As recently as February 4, he has insisted, “We don’t work as Republicans or Democrats,” and that “people don’t have a really good understanding of what the Court does.” But now Republicans have drawn his Court into the middle of the biggest political fight of the decade.
Imagine the Supreme Court deciding more than 100 cases without its full complement of nine Justices. Imagine this closely divided Court splitting 4-4 in many of those cases, meaning that it cannot issue a decision that provides binding law for the whole country. And imagine that, as a result, different people in different parts of the country are subjected to different laws. This is exactly the harmful and chaotic scenario some Republican leaders are advocating in the wake of Justice Scalia’s death. They should not be allowed to make that happen.
One sign of his success is that even unabashed liberals, such as Yale law professor Jack Balkin and the late Doug Kendall, founder of the Constitutional Accountability Center, have sought to adopt the method to their ends. And in at least one important decision, District of Columbia v. Heller, the 2008 case involving the Second Amendment right to bear arms, all nine justices engaged in avowedly originalist argument.
The court would be unable to issue nationwide rulings on any issue in which the justices split 4-4. "That would essentially be putting the Supreme Court in gridlock for two terms," said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.
"He could arrive at the same outcome that he drew the red line on this weekend by simply going through the process and getting to Sen. Cruz’s promised filibuster," [CAC Press Secretary Doug] Pennington said. "The first words out of McConnell’s mouth are 'we are not letting anyone else in.' It was not particularly politic."
If the Senate were to refuse to even hold a hearing to consider a Supreme Court nominee, especially in an election year? That’s a whole new ballgame. The vacancy, and the court's 4-4 ideological split, would likely persist across two Supreme Court terms, months into 2017. Such an extended vacancy would be unprecedented. And the fact that some senators are resolved to maintaining this situation is irresponsible.
The Constitutional Accountability Center has tracked the win rate of the Chamber of Commerce at the Court. Under the Roberts Court (2006 to 2015), the Chamber of Commerce has won 70 percent of the cases in which it took a position. Compare that with 56 percent under the Rehnquist Court (1994 to 2005) or just 43 percent under Warren Burger's Court (1981 to 1986).
More than two decades later, it’s clear that the piece failed to give Scalia his due. It’s true that Scalia never confronted the sharpest challenges to his originalist jurisprudence—in particular, to the liberal originalist academics such as Akhil Amar of Yale Law School and litigators at groups like the Constitutional Accountability Center, who insisted that text and history, honestly interpreted, should lead to progressive as well as conservative results
“That’s one reason why having an eight-member court for this year and next year is so troubling,” said Brianne J. Gorod, senior counsel at the left-leaning Constitutional Accountability Center.