NEWS Posted Yesterday at 10:12 PM
‘Shadow docket’ rulings reveal new alliances on Supreme Court
In emergency actions, the justices block a restrictive Louisiana abortion law and allow an execution to proceed.
BY ROBERT BARNES
THE WASHINGTON POST
WASHINGTON — Late-night rulings that touched on abortion, the death penalty and religious rights provided new insight into the alliances on the reconstituted Supreme Court and showed that even when justices try to avoid controversy, controversy finds them.
The emergency actions announced late Thursday showed Chief Justice John Roberts siding with the court’s liberals – for now – in blocking a restrictive Louisiana abortion law and keeping the status quo in place….
…In their first major test on the issue, Gorsuch and Kavanaugh met the expectations of the antiabortion groups that supported their nominations. Gorsuch joined Justices Clarence Thomas and Samuel Alito in saying the law should go into effect; none of the three provided their reasoning.
Kavanaugh did, in a dissent that no other justice joined. He said Louisiana had offered the equivalent of a 45-day grace period, in which doctors could have redoubled their efforts to obtain admitting privileges. If that proved insurmountable, the challengers could come back to the court, he said.
If “one or two of the three clinics would not be able to continue providing abortions … then even the state acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health,” Kavanaugh wrote.
Kavanaugh’s opinion might at some point be seen as a compromise. But abortion rights groups who opposed his nomination took it as confirmation that he is hostile to the right to abortion established in Roe v. Wade.
“Even as a bare majority of the Supreme Court made the correct decision, Justice Kavanaugh found a way to prove conclusively what everyone already knows: that he intends to use his position on the court to attack reproductive freedom,” People for the American Way executive vice president Marge Baker said in a statement.
In the death penalty case, it was the conservatives who prevailed, and the liberals who complained.
Domineque Ray, who brutally raped and murdered a 15-year-old in 1995, had asked prison officials to allow an imam to be in the death chamber for his execution. But the department said only corrections employees, which included a Christian chaplain, could be nearby during an execution.
A panel of the U.S. Court of Appeals for the 11th Circuit earlier this week stopped the execution and ordered expedited briefing in the case.
“We are exceedingly loath to substitute our judgment on prison procedures for the determination of those officials charged with the formidable task of running a prison, let alone administering the death penalty in a controlled and secured manner,” the panel said. “Nevertheless, in the face of this limited record, it looks substantially likely to us that Alabama has run afoul of the Establishment Clause of the First Amendment.”
But the Supreme Court’s conservatives, this time including Roberts, overruled. Without mentioning the claim’s religion aspects, they said in an unsigned order that Ray should have made his request and filed his suit earlier.
Kagan dissented, along with fellow liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, and called the court’s decision “profoundly wrong.”
She disputed that the filing came too late, and said the majority was ignoring a potentially meaningful constitutional issue.
Under Alabama’s policy, “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites,” Kagan wrote.
“But if an inmate practices a different religion – whether Islam, Judaism, or any other – he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”
Ray was allowed to meet with an imam earlier, and the religious leader watched from an adjoining room as Ray was put to death an hour after the Supreme Court rejected the stay request.
https://www.pressherald.com/2019/02/08/shadow-docket-rulings-reveal-new-alliances-on-supreme-court/
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