The Handmaids of SCOTUS

Nick Grossman isn’t prone to hysteria, so his dot connection at Arc Digital was concerning. But then, Nick also isn’t a lawyer and sees law through the same eyes as most people, devoid of nuance, the rationale for the rules and an understanding of how and why we got where we are and we stay where we are. Or not.

He began, as so many do these days, with the Supreme Court’s shadow docket decision in Whole Woman’s Health v. Jackson, the Texas SB 8 case, denying injunctive relief, relief which I argued should have been granted despite the structural problems with the parties and the limits of equitable remedies. But Nick didn’t see any of that.

To allow Texas to ban abortion after six weeks of pregnancy, five Supreme Court justices decided to play dumb. The ban would be clearly unconstitutional if enforced by the state, so instead Texas empowered private citizens to enforce it via lawsuits, and created financial incentives to encourage them. Justices Breyer, Roberts, Sotomayor, and Kagan figured out this obvious attempt to circumvent the Constitution, but Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett claimed not to.

Those five justices say the law’s novel enforcement methods raise complex legal questions, too much for the Supreme Court to rule on quickly. Conservative lawyers, such as EPPC’s Antonin Scalia Chair in Constitutional Studies Ed Whelan, have lined up in defense of the court’s “procedural” decision.

Years ago, the hope was that the internet would democratize the law, enable anyone to have access to statutes and caselaw so they could understand something as critical to our lives as law just like a lawyer. In a way it happened, thought not necessarily a good way.

Had the case been about pretty much any other legal issue than abortion, the refusal to enjoin not only wouldn’t have been controversial, but would likely have been unanimous. It was a technically correct decision. But the volatility of abortion as a legal issue in general overwhelmed the “procedural” (put in scare quotes, as Nick did, because process is scary). Legal pundits prone to hysteria, not to mention flagrant dishonesty, have twisted the understanding of non-lawyers like Nick as to what happened and why.

Did the five justices who voted to deny the injunction decide to “play dumb” even though the law was “clearly unconstitutional”? Did they fail to enjoin because the “complex legal questions” were too hard for the Court to rule quickly? Did they not grasp, as did the liberal wing of the Court, even though Justice Breyer is now a pariah for refusing to retire upon demand so he can be replaced with a justice whose decisions will be reliably correct to progressives, that this was an effort to circumvent the Constitution?

No. None of this is remotely accurate, even though this is the story being told to non-lawyers who lack the legal acumen to realize they’ve been manipulated to believe nonsense. Maybe Nick bought it. Maybe he came to this conclusion on his own. Whichever way he got there, it’s  an objectively false claim of the decision, demonstrating a gross misunderstanding of the rationale for the ruling. This does not mean the ruling was right or good, but it was not what Nick thinks it is.

The irony here is that this Supreme Court, which we’re reliably told was going to turn the nation into a theocracy and women into handmaidens, has done a fairly decent job of judging. They rejected the ridiculous Trump election suits. They kinda redefined “sex” to bring gender orientation and identity into the fold of Title VII. But these rulings are spun as distractions rather than, you know, rulings, to calm us before the inevitable sky falls. And fall it will, we’re  authoritatively told. Any day now. Any day. Annny daaaaayyyyy.

Nick accused me of having an idealized image of judges and lawyers, and to some extent, he’s right. If the Supreme Court is nothing more than partisan hacks using their bench as cover to push their political agenda and subvert the law and Constitution, then our form of government fails. As the Least Dangerous Branch, their only weapon is public trust. Without the Court, we have no check and balance on the power grab of the other branches, not that anyone fears that Congress or the President would ever violate the Constitution to achieve its ends, right?

Based upon this cynical, and substantively false, understanding of the interim ruling on SB 8, Nick takes an Olympian leap to a fear that the Supreme Court will be Trump’s, or at least the GOP’s, servant in overturning the next election.

Theories of a renegade Supreme Court conniving to become a handmaid to authoritarianism are overblown. But five justices just showed that, if they like a policy outcome and can find a legal pretext for it, they’ll allow states to trick their way around constitutional restrictions.

The Texas abortion ruling shows that, if the Supreme Court majority can find a way to rationalize putting a thumb on the electoral scale, they might very well do it.

When the Supreme Court rules the way you want, they’re okay, at least for the moment. When they don’t, they’re handmaids to conservative catastrophe. And if so, then they fail to fulfill their constitutional purpose, forsake their integrity and their decisions are worthless political pandering. If so, who needs a court at all? Pull out the guns and last person standing rules.

Nick’s ultimate point, that justices’ bias can push them to rationalize why a bad result is the right result, is undoubtedly correct, and correct for any judge and any court ever. But I refuse to get to the cynical prediction of the demise of democracy by grossly misstating a Supreme Court ruling and then making outlandish leaps of fear.

When people show excessive faith in the infallibility of the Court, I challenge it. When people show excessive cynicism in the nefarious motives of the Court, I challenge it as well. You may say I’m a dreamer, but otherwise our system of government cannot survive. Nick may be right, but it won’t be because of flagrantly false characterizations of rulings and wildly pessimistic assumptions about the irresistible political bias of the justices.

28 thoughts on “The Handmaids of SCOTUS

  1. Chris Van Wagner

    They may say you are a dreamer, but you’re not the only one. Or are you? The interweb and the twitters will soon render that decision, and it may also be a split verdict. Or so you (and I) can only hope.

  2. Paleo

    “If the Supreme Court majority can find a way to rationalize putting a thumb on the electoral scale, they might very well do it”.

    Where does the fact that they could have done so less than a year ago but emphatically declined to do so fit into this analysis? I guess he doesn’t say, huh?

    It’s like the idiots screaming that the Republicans would kill the filibuster the first chance they get. Real life just gets in the way of what they want, so they ignore it.

    This is just clickbait, intended to outrage the perennially outraged. These people shouldn’t have to be taken seriously, except to the extent that they have influence with Biden.

    1. SHG Post author

      I’ve given Nick the benefit of being a fair-minded person who is not so blindly partisan as to write a post like this merely to push a radical agenda of hysteria, but because he believes in good faith that his argument has merit. I do, however, wish non-lawyers would be more circumspect about promoting their flagrantly wrong “understanding” of what a decision means when it’s way beyond their education and experience as a matter of humility, a lost virtue.

      1. Richard Kopf


        On a broader subject, your response to the foregoing email is also important. Many nonlawyers lack the humility to recognize that they are not lawyers. Yes, this critical failure is a lost virtue. However, it is too bad that most of us cannot tell the difference between the stupid and ill-intentioned and the smart but out of their depth.

        All the best.


    2. Nicholas Grossman

      You didn’t read the article, and that’s totally fine (up to you), but if you don’t bother reading something it’s usually not the best idea to assert things like “I guess he doesn’t say, huh?”

      “Where does the fact that they could have done so less than a year ago but emphatically declined to do so fit into this analysis,” you ask? Here:

      “After the 2020 election, some pointed to courts as evidence America’s institutions held. And it’s true, they did, rejecting a series of baseless lawsuits. That’s important. But they weren’t really tested. Biden’s solid, multi-state victory — and, of course, the lack of evidence for conspiracy theories about fraud — meant there wasn’t a pretext.”

      You’re welcome to disagree with that, of course. But, like you, I dismiss “theories of a renegade Supreme Court conniving to become a handmaid to authoritarianism.” So if you’d like to disagree with me, try disagreeing with my actual argument, which is that, if a gimmick-based state election law–one for which there are technically-not-wrong legal arguments for either side–comes before this Court in 2024, there’s a chance the majority will let the gimmick work if it will result in their preferred political outcome. And the chance is not as close to zero as pro-democracy Americans should find comfortable.

      1. SHG Post author

        To be fair, Arc is behind a paywall, so it’s a bit unfair to scold someone for relying on the quotes here rather than reading your post at Arc.

  3. Kirk A Taylor

    Listening to NPR hand wring on this subject for several days, I constantly heard your voice* arguing against their insane rantings that the TX bill will be impossible to overturn and that this effectively overturns Roe. One guest suggested that no abortion provider or woman will dare get an abortion and thus create standing to challenge the law.

    *I have inferred your voice as one that is probably flattering yet also regionally and culturally insensitive.

  4. Tony

    Sometimes it’s “a legal pretext,” and sometimes it’s just following the law, when your main metric on good or bad is outcome driven.

      1. norahc

        I gather that is why the private attorney generals in California are allowed since they are workers fighting against the man, but the Texas private AG’s are unconstitutional.

  5. Dilan Esper

    I retweeted this on Twitter. You nailed it all- from the non-lawyers who don’t have the court experience to really understand the importance of precedents and legal reasoning to the inconsistent standards applied to different decisions to the constant catastrophizing of what the Court is supposedly going to do.

    I am proud to be a fellow member of your profession.

    1. phv3773

      As a non-lawyer, let me note how characteristic of the courts it is to countenance irremedial harm to citizens while taking their own sweet time “to get it right.” True at the local level. e.g. right to speedy trial, and true at SCOTUS.

  6. B. McLeod

    This is how politics works now. To get a sufficient number of people shrieking, what the Court actually did isn’t good enough. So, the pundits have to explain how the justices they don’t like laughed a maniacally evil laugh while dancing on injured puppies.

  7. Nicholas Grossman

    I’m finding this post hard to reconcile with one you wrote recently.

    Greenfield, 9/13: “Did the five justices who voted to deny the injunction decide to “play dumb” even though the law was “clearly unconstitutional”? Did they fail to enjoin because the “complex legal questions” were too hard for the Court to rule quickly? Did they not grasp, as did the liberal wing of the Court, even though Justice Breyer is now a pariah for refusing to retire upon demand so he can be replaced with a justice whose decisions will be reliably correct to progressives, that this was an effort to circumvent the Constitution?

    No. None of this is remotely accurate, even though this is the story being told to non-lawyers who lack the legal acumen to realize they’ve been manipulated to believe nonsense.”

    Greenfield, 9/2: “A law so facially unconstitutional should not be permitted to go into effect due to a novel procedural gimmick so that the damage is done first and the Court is left afterward to, at best, “tsk” at its wrongfulness. Preserve the status quo ante now. Decide later. Decide after full briefing. Decide after there’s time to fully consider both the procedural scheme to evade review as well as the substantive unconstitutional law.”

    Also 9/2: “And most importantly, the Court punted on the critical question of whether Texas’ enforcement gimmick should oust the Court of jurisdiction to prevent an unconstitutional law from taking effect. if so, then the Court just let Texas (and any other state so inclined) beat the Constitution. That cannot be.”

    What happened in 11 days that transformed this law from “facially unconstitutional”–one that the court should’ve stopped from going into effect because it used an “enforcement gimmick” that “let Texas (and any other state so included) beat the Constitution”–into one in which it’s “not remotely accurate” to say the court allowed a “clearly unconstitutional” law to go into effect because they decided to fall for the “enforcement gimmick,” even though they could have and should have stopped it from going into effect?

    1. SHG Post author

      You make a number of unfortunate assumptions. First, the constitutionality of the law is properly addressed in the merits decision, not in a petition for the interim relief of an injunction. It’s relevant to the extent that one of the criteria for injunctive relief is likelihood of prevailing on the merits, and I gave that greater credit than the procedural problems of there being no real case and controversy, no real defendant against whom to issue the injunction and no real standing to seek interim relief. The Court can’t enjoin a law. It can’t enjoin random people in Texas. It can’t enjoin Texas judges. So the remedy was more about appearances than substance. But for my purposes, that would have been good enough just to show where the Court stood on the issue, even if the remedy was meaningless.

      But the core mistaken assumption isn’t that the conservative majority was biased and put its thumb on the scale, but that I was biased and put my thumb on the scale, both by placing more emphasis on the constitutional nature of the law and because of the institutional concern that the controversial nature of the issue gave rise to a compelling reason to fudge the other issues that a sound application of law would not have valued as highly as I did.

      If this were merely a routine petition for interim relief, it would be easy, but this is one of the most volatile issues in the country at the moment, and I share CJ Roberts’ concern that preserving the status quo ante might not be the most technically correct application of law, but it’s the application that best serves the greater good. That’s my bias. The majority’s decision was not wrong, just not what I would have done.

      1. Nicholas Grossman

        I don’t think this is significantly different from what I argued.

        Sometimes, things come before the Court in which both sides can provide a reasonable technically-not-wrong legal rationale. In those cases, the decision is based on which of those rationales one chooses to prioritize, and that choice is unavoidably influenced by one’s preferred policy outcome.

        As Roberts, Sotomayor, and you all argued, the Court could have stopped implementation of the law while courts examined it further. That was an option, and four justices voted for it. Five, however, voted to allow, as you put it, a “facially unconstitutional” law to go into effect “due to a novel procedural gimmick,” which means “the damage is done first and the Court is left afterward to, at best, ‘tsk’ at its wrongfulness.”

        I agree.

        I did not argue the majority violated the Constitution. I argued that they choose to let themselves fall for a novel procedural gimmick because, while it wouldn’t be wrong to reject it, it also wouldn’t be wrong to allow it, and given those two technically-not-wrong options, the majority chose the one that aligns with their personal policy preferences.

        You seem uncomfortable with acknowledging that, and especially uncomfortable with thinking through the implications for potential election law cases where a state tries a novel gimmick and the Court hears a case in which there’s a technically-not-wrong rationale for both outcomes.

        1. PseudonymousKid

          You’re either out of your depth or so blinded by the issue that you can’t see the big picture for what it is. SHG explained his position to you clearly. He admitted his own bias in wanting the Court to put its thumb on the scales. The majority of the Court didn’t have that bias. You assume that means that personal policy preferences must be the reason for the disagreement. That’s a shaky limb to be on; you don’t have much support beyond simply saying they are biased against women’s right to abortions. These are judges you are talking about, not politicians no matter how much you want them to openly politick.

          You want SHG to acknowledge bias that you can’t prove exists. There’s a possibility of bias, sure, but that still doesn’t mean the majority was wrong. They weren’t wrong. You seem uncomfortable acknowledging even the possibility that there is no conspiracy by the majority against the right to an abortion. Why? Am I naive for refusing to say I can read the justices’ minds?

          1. Nicholas Grossman

            If you’re right that Greenfield was biased and wrong about the law, and that Roberts, Sotomayor, and Breyer were biased and wrong about the law, it’d be prudent for Greenfield to issue a correction on his September 2 post that argues they were right. Or maybe delete that post entirely, since it presents a biased and wrong argument.

            1. SHG Post author

              This reflects yet another misunderstanding about law here. It involved a balancing test, not a right/wrong binary. My bias was to give greater weight to the unconstitutionality of the law and lesser weight to the procedural infirmities of the petition because of the subject matters volatility. My post here was written for the lawyers and judges whp read SJ, who easily understood what I wrote. That a non-lawyer would assume there is a simple right/wrong answer to the question can’t be helped.

              This goes to my point about the failure of access to law and legal analysis on the internet democratizing law. Without the background in law to understand the complexities of legal analysis, you can read the words without understanding them.

              As for the dissents in Whole Woman’s Health, there is yet another level of legal understanding worth considering. Dissents can be used to identify specific issues of law or as a facile soapbox for a cause since they carry no weight as precedent. There is a long legal tradition of fiery dissents, full of sound the fury signifying nothing.

            2. Rengit

              Since you keep using these words in tandem and exchanging them in and out, “biased” and “wrong” aren’t synonyms, and this is a critical problem with your argument. Putting aside legal definitions of “bias”, even in the more colloquial sense attributing any “wrong” decision to bias results in jurisprudential and interpretive anarchy: as every single person is biased, including judges, how can any judge or group of judges, who are all biased, issue a “right” decision that satisfies the biases of everyone? Unless, that is, your fundamental assumption is, “I am not biased, people who disagree with me are”, or maybe, “My biases and those who share them are good, the biases of those who disagree aren’t.”

              What’s the point in arguing with someone if you will attribute any disagreement to their bias?

            3. PseudonymousKid

              At least you aren’t shy. It shows something that you’d try to engage with a group actively disagreeing with you. You even got the Host to expound on his view in excruciating detail. I hope you understand at least a little better after all this, or else I’ll have to stop being so polite about it. It was a bit much to suggest the deletion of a post based on your own misunderstanding of it.

        2. Sgt. Schultz

          This is the classic example of “I can explain it to you, but I can’t understand it for you.” It’s not your fault for not being a lawyer and not understanding that the Supreme Court can’t “stop a law” because that’s not what within the realm of available remedies. But it is your fault for not realizing that your inability to understand the complexity of the legal issues is your mushy grasp of law, not any nefarious bias by the majority.

        3. Miles

          If somebody somehow comes up with some novel gimmick (like what? Who knows) for the future election, and it’s got a “technically-not-wrong” rationale, why do you assume that the Supreme Court owes you the bias you want rather than holding that the “novel gimmick” is entirely lawful?

          Has it ever occurred to you that if that should happen, perhaps the other side is in the right and you’re not? Or are you of the view that since your always right, the “technically-not-wrong” law must be wrong because Nick Grossman doesn’t like it?

          1. SHG Post author

            The problem with “technically-not-wrong” is that another way of phrasing that is “technically right.” If so, perhaps the answer will be that the Court does what’s right, even if it’s not what some want.

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