Judge Kagan, and for the most part Judge Sotomayor, seemed intent on building bridges with Judge Barrett to help her win votes. Judge Jackson, on the other hand, took a different approach.
exist moyleJudge Jackson accused Barrett, along with Chief Justice Roberts and Justices Kavanaugh, of recusing themselves from the case because of Idaho’s “convenience” argument.
Some of my colleagues seem to see this convenient rhetorical strategy as a substantive change (also Conveniently) reduces the conflict between state and federal law to the extent that this court’s decision is no longer guaranteed. See supra note, pp. 6-7 (Barrett, J., concurring). But it is both legally and factually implausible to suggest that Idaho’s current litigation position actually mitigates the conflict between the state’s laws and EMTALA.
She claimed the Barrett troika was “evading responsibility.”
Therefore, to say the least, this Court will Shirk responsibility Resolve pressing legal issues based on statements contrary to medical reality.
She accused the three in the middle of using an “escape hatch”.
Still, some of my colleagues latched on to the Idaho attorney’s stark statement and used it as escape hatch This proves that we do not have to make a merits determination in these cases.
And take “dispatch”.
We cannot simply turn the clock back to the situation before the courts intervened in the matter. Our intervention has distorted the proceedings. We first allowed Idaho law to take effect by staying the district court’s injunction and then allowed the matter to remain on our docket for five months while we considered the issues raised. It’s too little, too late for the courts Schedule and told the lower court to proceed as if none of this had happened. As the old adage goes: The Court has already made the bed, so now it must lie on it—by proceeding to decide the merits of the key preemption issues raised by this case.
Justice Jackson shared many of the same points as Justice Alito’s dissent. I feel a deep sense of frustration with Judge Barrett. Justices Sotomayor and Kagan will vote when possible. Their time horizon is much shorter than other members.
Additionally, Judge Jackson called on Judge Barrett to at least show that the Idaho case may have some merit.
While the legal issues are clear and urgently require an answer from this Court, today Six justices refused to admit RIGHTS PROTECTED BY EMTALA. See supra note, pp. 4-7 (Barrett, J., concurring); Post, pp. 4-11 (Alito, J., dissenting). Instead, most chose to dismiss the cases. But storm clouds lie ahead. Three justices said that, at least in this case, states are free to strike down the federal law. See Post, pp. 11-14 (Alito, J., dissenting). The other three refused to disagree with the dissidents on the merits of the case. See supra note, pp. 4-7 (Barrett, J., concurring). The latter complained only that “the petitioners raise a difficult and important argument” concerning Congress’s authority under the Spending Clause. Ante, 6 (Barrett, J., concurring). So, as of today, the courts have not embraced Idaho’s far-fetched theories, but they haven’t rejected them either.
In addition, Judge Jackson also filed a charge of “contempt of EMTALA” against the Fifth Circuit Court.
Instead, the court delayed its ruling. But how long do pregnant patients have to wait for answers? Until we face the pending petitions filed against us by the government following the opening of the Fifth Circuit Texas’ defiance of EMTALA? Until these cases come back to us years later? Will this Court revisit and revisit the same arguments we are considering now at a relatively convenient point in time? Or maybe we’ll continue to bet on this issue and let confusion hang over us where lower courts allow states to blatantly weaken federal law, exacerbating the suffering of people in need of emergency medical care.
As I noted before, the Fifth Circuit petition could set the stage for a lengthy session. I have to imagine Jackson and the three conservatives will be the sure ones. Of course, if Trump wins, the case will be deadlocked.
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