Susan Collins: Brett Kavanaugh's attackers 'haven't even read' dissent

[jpak]

http://bangordailynews.com/2019/02/09/politics/collins-kavanaughs-attackers-havent-even-read-dissent/?_ga=2.89978205.735965569.1549807746-430879735.1549807746

Critics of Republican Sen. Susan Collins are angry over Supreme Court Justice Brett Kavanaugh’s opinion in an abortion case.

Critics say his dissent on the losing side of a Louisiana abortion law ruling is proof that he’s not following through on his assurance to respect past Supreme Court decisions on abortion.

The Sun Journal reports that NARAL Pro-Choice America claims the dissent shows Kavanaugh’s instance to Collins that he would respect precedent “was a complete lie.”

But in his dissent he said otherwise.

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[SunSeeker]

1. No, his dissent does not say otherwise. It shows he, and Collins, are dishonest sacks of shit.

As a law professor commented in WaPo:

"Kavanaugh insisted that the court did not have to block the Louisiana law because Louisiana had represented in its brief to the Supreme Court that it would not actually enforce the law. But a promise not to enforce a law is not a reason to allow that law to go into effect, particularly when the court has declared that same law unconstitutional just two years ago. And even a small risk that the law would be enforced would have drastic consequences, because if a clinic closes even temporarily, it may not ever reopen. This dissent makes clear how Kavanaugh will bend over backward to limit access to abortion, and allow restrictions on abortion to go into effect based on nothing more than a pinkie swear."

[PeeJ52]

2. Yes.. Kavanaugh predicts the Drs. will be granted admission privileges so they shouldn't...

get involved. Just like Roberts predicted foreign and dark money wouldn't take over campaign finances in Citizens United. These justices need to stop basing their decisions on their predictions and decide on fact and worst case application.

[Ms. Toad]

4. They are actually doing what the law requires.

When there is a constitutional challenge to a law, there are two ways to challenge it:

By making a facial challenge to the law (no matter how this law is applied, the content of the law is unconstitutional)
By making an "as applied" challenge to the law (the law itself passes constitutional muster - but based on the facts of this case it was applied in an unconstitutional manner.)

Part of the challenge with following this particular precedent is that the Texas decision was called (and resolved as) a facial challenge, meaning there is no way in the world it is constitutional. If you read the decision, however, it was actually decided on the particular facts in Texas that would dramatically limit access to abortion because of the sparcity hospitals at which abortion clinic doctors could gain admitting privileges - so it was actually an "as applied" decision.

What Kavanaugh is saying is - wait a second. The Texas case was actually an "as applied" decision. The court did not decide that rquiring admitting privileges was unconstitutional across the board. What it decided was that - on the facts in Texas - in which applying the restriction would limit Texans to a single abortion facility based on the location of abortion clinics, and of the hospitals willing to grant admitting privileges, etc.

His dissent focuses on the possibility that the outcome ("as applied&quot of applying the law in Louisiana might have a different result - that each of the doctors in the existing abortion clinics could obtain admitting privileges in a local hospital - in which case the law does not unduly burden women's rights to have an abortion. His dissent isn't based on a promise not to enforce (as another poster in this thread suggest), it is based on the possibility that when the abortion clinic doctors go for admitting privileges they will each be able to gain such privileges at appropriately nearby hospitals.

The Texas decision is messy - and when you try to extend a messy decision to another state you often get messy results.

That said, nothing in his dissent suggests he will not uphold the Texas decision under facts that are similar to Texas. Where he may come out differrently (and, frankly, I suspect he would not be the onlya one) is if there is a case seeking a facial review of a similar law, becuase the Texas case will fall apart under that scruitiny.

[PeeJ52]

5. Well you seem much more knowledgeable in law then me, but...

how can a judge make a decision on his prediction that a doctor will be approved admitting privileges? You can't predict what someone else will do? You don't even know who that someone else is who will decide? I just can't see how you can say you are making your decision based upon your prediction.

[Ms. Toad]

6. That is precisely Kavanaugh's point.

The Texas court decision predicted that doctors would not be able to obtain admission, and declared the law unconstitutional on that basis.

Kavanaugh's position is that requiring admitting privileges is not unconstitutional per se - but is only unconstitutional if the consequence of the law is that the number of abortion clinics is dramatically reduced - significantly impacting women's ability to get an abortion.

The judtes who affirmed did so based on a prediction that doctors would not be able to get admitting privileges. Kavanaugh said - we don't know what will happen. These doctors may well be able to obtain admitting privileges - and if they can, and it does not make it significantly harder for women seeking abortions - then the law is not unconstituitonal as applied. In his opinion, the Supreme Court should not yet be making a decision, because it is inappropriate for judges to make a determination that the law itself is unconstitional based merely on the effect it will have under the particular facts as they play out in Louisiana.

When this case came up, I went to the Texas case and was very surprised to find that their arguments were all "as applied," (under the facts in this case, implementing this law is predicted to result in reducing abortion options to a single clinic, even though they were calling it a facial decision (blanket unconstitutional - there are no circumstances under which it might be constitutional) - so I am not surprised to see Kavanaugh's dissent. Were I on the Supreme Court, I might well reach the same decision.

Here's the difference:

A law that bars Blacks from obtaining liquor licenses would be facially unconstitutional because it discriminates based on race. No way to interpret it that is non-discriminatory.

A law that bars liquor licenses in a particular geographic segment of town is facially constitutional. There's nothing in the law that discrimniates against a protected class. But - even though it is facially constitutional, if the geographic segment of the town is heavily black - and the rest of the town heavily white, as applied the law discriminates against blacks. I.e. because the effect of the law as applied is to discriminate against blacks, it is unconstitutional as applied.

As to the abortion law:

The Texas court did not describe why the law was unconstitutional - it jumped right to the effect (which was unconstitutional). Kavanaugh is saying if this law has the same effect, it will be equally unconstitutional - but we just don't know yet what the effect will be.

It's complicated - and Kavanaugh may well still end up on the wrong side of the matter. This decision, though, isn't it.

[PeeJ52]

7. Explain me this please, Ms. Toad...

How in the hell could they rule for Citizens United? It doesn't make sense. They use one set of logic for one instance and a complete different set of logic for another. They couldn't predict foreign money would find it's way into the political process??? Give me a break.

How can anonymous money be ruled as free speech? I will agree that money can equal speech. But the argument that the donor of that money can be kept secret for they fear reprisal if people find out who donated it can not valid.

To me, you can not expect to have free speech if you do not want people to know what you say. You may have free speech, but you must be held responsible for your speech.

[Ms. Toad]

9. I haven't spent a lot of time on Citizens United.

And it's a pretty complicated decision - so I don't think I could do it jutice without spending a couple of hours on it. The gist of it is that the first amendment prohibits government restriction on speech - by individuals or associations of individuals (including corporations). So it's not about predicting that foreign money might intrude - but about the nature of restrictions that can be placed on speech (whose speech, and how many restrictions).

[rockfordfile]

8. That's really just a bunch of ifs and really just a excuse. Kavanaugh is just a liar.

[dalton99a]

3. Aunt Lydia is always right