Final Update - Part 2

A few months ago, I came out with my "Conservative's Guide to the Supreme Court" and selected nine important cases that have far-reaching consequences for issues that conservatives care about.  With the Supreme Court term coming to a conclusion this week, all nine cases have now been decided and I've provided updates along the way.  The final two case updates are below.  I hope you have enjoyed reading them as much as I've enjoyed keeping track of them. 

Whole Women's Health v. Hellerstedt

In Whole Women’s Health v. Hellerstedt, the Supreme Court voted 5-3 to strike down Texas’s regulations on abortion providers.  The regulations, called HB 2, required abortion doctors to have admitting privileges at hospitals within 30 miles of the abortion clinic, and imposed surgical-center standards on clinics.  Justice Kennedy joined the liberal bloc, providing the key 5th vote.

Writing for the majority, Justice Breyer held that these restrictions posed an “undue burden” on women’s constitutional right to have abortions, and thus struck them down.  The “undue burden” standard dates to 1992’s Planned Parenthood v. Casey decision.  The liberal bloc of the Court, joined by Justice Kennedy, held that the Texas law did impose such a burden, and lacked medical benefits to the women sufficient to justify that burden. 

The decision will impact Virginia law specifically.  The Commonwealth has implemented surgical-center standards similar to the Texas standards the Court struck down.  Under the Court’s decision, these will also be struck down. 

Notably, the Court’s opinions total 107 pages. But to understand the liberal position, reading Justice Ginsburg’s 1 ½ page opinion is all that is necessary.  Similarly, Justice Thomas’s 14-page dissent powerfully argues that this case is just the latest example of the Court bending its procedural rules into knots to defend so-called “rights” it sees as special. The further the Court goes to bend the Rule of Law for the policy preferences of a majority of its members, the more it will undermine the faith of the governed. The people are smarter than the Court recognizes or - apparently - cares.

McDonnell v. United States

In McDonnell v. United States, the Supreme Court vacated former Virginia Governor Bob McDonnell’s corruption convictions, which concerned various benefits that McDonnell and his family received from a Virginia businessman.  The question before the Court was whether actions such as arranging meetings, hosting and attending events, and contacting other officials to support the businessman’s product qualified as “official acts”—a requirement of the charges McDonnell faced.

Chief Justice Roberts wrote the opinion for a unanimous Court.  The fact that it was unanimous is noteworthy; and as noted in earlier posts, the Courts' decisions in this area do not always breakdown on traditional ideological lines.  In sum, the Court held, an “official act” is a decision or action on a specific and focused issue that is pending or may be brought before the government and that involves a formal exercise of government power.  It is not enough to simply coordinate meetings or events or communicate with other officials about issues as broad as Virginia business and economic development.

The Chief’s opinion also declared that the “expansive interpretation” of “official act” advocated by the federal government “would raise significant constitutional concerns.”  In particular, “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.”  The federal government’s position, the Court said, “could cast a pall of potential prosecution over these relationships” whenever the constituents had contributed to the official’s campaign or invited him or her to a ballgame.  As discussed in earlier posts, this case falls in line with recent Supreme Court decisions expressing concern about expansive federal power.

The Supreme Court thus concluded that the trial court allowed the jury to convict McDonnell for conduct that did not meet the proper interpretation of “official act.”  It “remanded”—or sent the case back—to the lower appellate court for further proceedings.  That court will determine whether the prosecution presented sufficient evidence to satisfy the “official act” standard as clarified by the Supreme Court.  If so, a new trial could ensue.  If not, the charges against McDonnell must be dismissed.

As the Supreme Court made clear, its opinion was not meant “to suggest that the facts of this case typify normal political interaction between public officials and their constituents.  Far from it.”  Instead, the Court saw this case as a troubling example of federal overreach.