More Positive Supreme Court News

The Supreme Court has been a source of a lot of good news - not on everything - and just within the past half hour comes more, this time on access to abortion in Texas.

The Supreme Court issued a brief, two paragraph order on Monday permitting Texas abortion clinics that are endangered by state law requiring them to comply with onerous regulations or else shut down to remain open. The order stays a decision by the United States Court of Appeals for the Fifth Circuit, which imposed broad limits on the women’s right to choose an abortion within that circuit.

The Court’s order is temporary and offers no direct insight into how the Court will decide this case on the merits. It provides that the clinics’ application for a stay of the Fifth Circuit’s decision is granted “pending the timely filing and disposition of a petition” asking the Court to review the case on the merits. The Court adds that, should this petition be denied, the stay will automatically terminate. Otherwise, the stay “shall terminate upon the issuance of the judgment of this Court.”

While the substance of the order offers little insight into how the Court will ultimately decide this case, the final sentence of the order does: “The Chief Justice, Justice Scalia, Justice Thomas, and Justice Alito would deny the application.” Notably absent from this list of dissenting justices is Justice Anthony Kennedy, a conservative who typically votes with his fellow conservatives in abortion cases, but who has also refused to overrule Roe v. Wade outright.

The fact that the four liberals voted to grant cert is crucial - on abortion cases in recent years, it had usually been the conservatives seeking to create bad law, and the liberals rarely voting to take new cases in fear of precisely the same outcome. Here, Justice Kennedy was with the liberals in agreeing to take the case, which means there is a very good chance that he sees the Texas regulations as going too far in the direction of overruling Roe v. Wade. More important than what I think is that Sotomsyor, Kagan, Breyer and Ginsburg obviously believe the same thing - otherwise, their vote to grant cert was foolhardy and counterproductive. We shall see.