According to Amy Howe at SCOTUSblog, Supreme Court Justice Brett Kavanaugh “openly worried” during oral arguments Monday that part of the recently passed Texas Heartbeat Act can “easily be replicated in other states … to target gun rights, free speech rights or religious rights.”
Some took it as an indication that the case—one of two that pro-life advocates are hoping might finally end a half-century of legalized abortion in the US—might suffer the same fate as past challenges to the controversial legal precedent first established under Roe v. Wade.
That may depend largely on whether fellow junior Justice Amy Coney Barrett, a devout Catholic with a long record of supporting pro-life issues prior to her confirmation to the high court, continues her recent residency in the idealogical center alongside Kavanaugh and Chief Justice John Roberts.
Normally it’s hard to read Justices but Kavanaugh’s statements here lead me to think this Texas law’s gambit is in serious trouble. He is picking up on Breyer and Kagan points about the evasion of constl rights enforcement.
Texas lawyer getting testy with Kavanaugh
I don’t…
— Neal Katyal (@neal_katyal) November 1, 2021
The justices focused not on the law’s conflicts with Roe and Planned Parenthood v. Casey, but rather on “the law’s unusual enforcement mechanism” which “allows anyone, including people who do not live in Texas, to bring a lawsuit in state court against anyone who performs an abortion or helps to make one possible.”
USA Today reported that Kavanaugh “pressed attorneys for Texas on why other states wouldn’t copy” the same enforcement mechanism in other contexts, and wondered whether “Second Amendment rights, free exercise of religion rights, free speech rights could be targeted by other states?”
Left-wing pundits on MSNBC and CNN praised Kavanaugh’s line of inquiry, with disgraced legal commentator Jeffrey Toobin calling it “very important.”
However, Tom Fitton, president of the conservative Judicial Watch, warned that “Justices Kavanaugh and Barrett seem ready to upend our constitutional system, including over a century of legal precedent, to help abortionists in Texas.”
Unfortunately, Justices Kavanaugh and Barrett seem ready to upend our constitutional system, including over a century of legal precedent, to help abortionists in Texas. The Left’s threats and intimidation against the Supreme Court seem to be working. I hope I am wrong. https://t.co/P1kDu5sTzj
— Tom Fitton (@TomFitton) November 1, 2021
Not everyone on the Right was vexed by Kavanaugh’s latest defection.
At the libertarian-leaning Volokh Conspiracy blog, Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, argued that Kavanaugh’s line of inquiry was concerned with preventing government overreach.
In fact, he said, it was “great news for anyone who values judicial protection of constitutional rights, even if you are no fan of Roe v. Wade and other Supreme Court precedents protecting abortion.”
According to Somin, what is really at stake in these cases “is whether states can use delegation to private litigants as a tool to shield laws threatening constitutional rights from judicial review.”
“Fortunately,” he added, “it looks like the majority of justices are intent on forestalling that dangerous scenario.”
