Gender Justice’s Post

What were the most notable cases on state constitutional law in 2023? State Court Report asked leading experts, who told us about court decisions on reproductive rights, climate protection, gerrymandering, and more. Read more on #StateCourtReport. #Constitution #Law #2023trends: https://lnkd.in/gf4p9V4X

Over the last two years, the extreme right-wing majority on the Supreme Court ended affirmative action in higher education; overturned Roe v. Wade, allowing states to enact abortion bans; and created new legal doctrines to gut environmental protections. This year appears to continue the trend. The cases before the Supreme Court broadly threaten to undermine the rule of law, throw more power to corporations than ever, and treat presidents as kings—free to act with legal impunity.  These critical cases are being decided while the court is in the midst of an ethical maelstrom: Justice Thomas has received more than $4 million in gifts from right-wing special interests and benefactors and Justice Sam Alito’s homes have had flags sympathetic to January 6 insurrectionists flown outside them. There is little reason to wonder that the Supreme Court’s approval rating is at an all-time low of 34.2 percent. The Supreme Court appears to be careening further out of control this term, and the need for substantive reforms—to remind the justices that they are just one coequal branch of government—have never been more necessary. A new report from Devon Ombres outlines the threats to rule of law posed by this Supreme Court term, and how we can fight back against a radical Supreme Court majority. 

Following this important story.

Because of a quirk in Texas law, the attorney general has blocked trial court rulings against state restrictions on abortion, gender affirming health care, local control of elections, & a long list of other cases. Read more on #StateCourtReport https://lnkd.in/gRxu-FRX

Democrats in the Arizona House of Representatives will seek to repeal an 1864 ban on abortion that is poised to become state law once again, but they will need the help of some Republicans in the closely divided legislature. A state Supreme Court ruling on April 9 revived a ban on nearly all abortions under a law written during the U.S. Civil War when Arizona was not yet a state and women lacked the right to vote. With Republicans holding a 31-29 advantage, Democrats would need at least two Republicans to join them to succeed. If the repeal passes in the House, Democrats also would need help in the Senate, where Republicans hold a 16-14 edge. Read more: https://lnkd.in/gQp5D7cA #legal

ONE WEEK TO SCOTUS 🏛️ On Wednesday, April 24th, the state of Idaho will face off against the Biden administration in America’s highest courtroom. In many ways, Idaho isn’t merely defending its own pro-life law. It’s defending EVERY state that took the U.S. Supreme Court at its word: “the authority to regulate abortion is returned to the people and their elected representatives.” The Biden administration is trying to undo the Dobbs ruling, invent a federal abortion mandate, and nullify the pro-life laws of more than 20 states. To do so, it’s twisting a federal law that was intended to SAVE life, not end it. In essence, the Biden administration is trying to use one pro-life law to invalidate another. ADF is proud to assist the AG of Idaho and stand against this brazen power grab. We’ll be livestreaming the oral arguments, with commentary beforehand and afterward. TUNE IN LIVE 📺 9:45am ET: adflegal.org/emtala Idaho protects life. The Constitution protects its right to do so.

Failures in the “Laboratories of Democracy” and Democratic Due Process as Constitutional Guardrails Process as Constitutional Guardrails  - PDF: https://lnkd.in/ghGafE4k In Dobbs v. Jackson Women’s Health Organization, the Supreme Court reversed decades of precedent supporting a substantive due process right to abortion under the Fourteenth Amendment, and purported to return the question of reproductive autonomy to the “democratic process” in the states. Justice Thomas, writing in concurrence, militated for reconsidering all of the Court’s substantive due process precedents. In today’s era of democratic backsliding, these are dangerous pronouncements with grave, if not existential, implications for democracy in the United States. The Dobbs majority hazardously asserted that state-level abortion legislation would, in fact, be the result of a democratic process. Further, because the law of democracy draws extensively from substantive due process, including where the Fourteenth Amendment “incorporates” textually enumerated constitutional rights against the states, the broader threat to substantive due process in the Dobbs majority opinion and Justice Thomas’s concurrence is also a direct threat to democracy itself. Although the literature on democracy and the literature on substantive due process are both individually voluminous, there is surprisingly limited scholarship focused specifically on both as interrelated topics. Building from democratic theory and John Hart Ely’s political process theory of judicial review, this Article seeks to begin elaborating on the important connections between democracy and substantive due process that help explain the legal and practical importance of each to the other. In doing so, it also attempts to lay the groundwork for an approach to substantive due process rooted in the Federal Constitution’s vision of democratic self-government for a diverse society. #Democracy #SubstantiveDueProcess #ProceduralDueProcess #staredecisis #democracticbacksliding

When anti-choice extremists discuss restricting our fundamental freedoms, they often cite the Comstock Act. What is the Comstock Act, and how does this 1873 law impact the state of reproductive freedom today? Learn more 👇 https://lnkd.in/g9sZztrD

Yesterday, the Supreme Court granted cert and a stay in a case about whether federal law preempts Idaho's ban on abortions. Many commentators will talk about what's next. But their focus will be on what is happening in the Supreme Court. Here's a look at this development from the 9th Circuit's perspective. A recap: The federal government sued Idaho, arguing that federal law preempted Idaho's abortion ban. A federal court granted a preliminary injunction. Idaho and its legislature appealed and asked for an emergency stay. A 3-judge panel granted the stay. The court then granted the fed's motion for reconsideration en banc, vacating the 3-judge panel's order. A few weeks later, the en banc court hadn't acted on the emergency stay motion. The Idaho legislature filed a "nudge" motion, asking for a ruling on the stay request. Its approach was a little brazen. One way of reading it is: "Can you deny our motion already so we can move on to SCOTUS? Your decision will be important, but we all know that SCOTUS will have the last word." (See the brief excerpt in the attached image.) The en banc panel denied the stay request (over 4 dissenting votes) and scheduled the case for oral argument. As forecasted, Idaho then sought a stay from SCOTUS. SCOTUS didn't just grant the stay request. It treated the request as a petition for cert before judgment and granted cert. The perhaps unexpected cert grant has ramifications for the 9th Circuit. The en banc oral argument was just two weeks away. No doubt judges and their law clerks had poured a lot of time into studying the briefs, preparing bench memos, and likely analyzing bench memos from other chambers. But all that goes away by SCOTUS snatching the case. I, for one, would have liked to see what happened in the 9th Circuit, especially based on the draw of judges for the en banc panel. We'll probably never know. #appellatelinkedin #ninthcircuit #appeals