Sunday, June 16, 2024

Supreme Court Goes Woke! (Not Really)

Two recent decisions by the Supreme Court seem to go against its conservative image - or not.

In one recent decision, the court held that the Federal Government will have to pony up money to help pay for management of tribal healthcare, now that it is being taken over by native tribes.  This was a split decision 5-4 which may indicate a growing gap between some of the more moderately conservative judges and the extreme right-wing. Tribal leaders fought to have self-determination in managing their tribe's healthcare and the government went along, but failed to provide funding to administer the program.  I was sort of a left-handed gift (Indian giving? Sorry!) in that while giving the tribes what they wanted, by not funding the mandate, essentially nullified it.

The conservative minority played that same old tired violin song about how this was best left up to Congress to implement - knowing full well their supporters in Congress would block any legislation to provide such funding.  The old song-and-dance from the Right.

So maybe in a way it was a minor victory for centrists and the left, in that there are apparently cracks in the conservative majority and the court is not entirely heartless and bound by "strict interpretation" of "plain text" and other legal chicanery used to avoid making decisions.

In another recent decision, the court held that plaintiffs (a number of doctors) didn't have "standing" to sue to prevent access to the abortion drug mifepristone.  While this may seem like an about-face from its previous decision in the Dobbs case, Dobbs didn't ban abortion outright, or indeed, at all.  It merely relied on this tired trope of "States Rights" to argue that abortion should be handled at a State level, not a Federal one.  And of course, this has caused chaos as some States (looking at you, Texas!) have threatened to prosecute women who travel outside of their State to obtain an abortion. States rights to meddle in the affairs of other States, apparently.

What's next?  Arresting people in Texas for smoking weed in Colorado?  I don't want to give them any ideas!

But once again, "strict interpretation" of the "letter of the law" leads to odd bedfellows.  In this case, the conservative wing of the court is not passing judgement on the legality of this drug, but rather refusing to "legislate from the bench" and punting to Congress to decide.

And it goes without saying that if a conservative Congress is elected in November 2024, well, they will try to outlaw the drug.

But it is weird how this "plain text" interpretation of laws and the Constitution (as opposed to the "penumbra" approach) ends up in strange places.

Perhaps some members of the court are having second thoughts about dramatic moves to the Right.  It has happened before - Justices change their views over time, as they no longer need to heed some political master (other than Clarence Thomas, who needs to make payments on his motorhome).  Some conservative justices end up disappointing their puppet masters, as they brazenly cut the strings.

But I'm not holding my breath.  I am sure Kavanaugh will say, if Trump is elected this year, "Well, the Constitution doesn't explicitly say you can't run death camps!"

"Strict Interpretation" for thee, but not for me!  When it starts to rain, conservatives suddenly find a need for their penumbra.