‘Some geniuses': Justice Kagan wryly mocks the architects of the Texas abortion ban in oral arguments

‘Some geniuses': Justice Kagan wryly mocks the architects of the Texas abortion ban in oral arguments
Justice Elena Kagan // Steve Petteway, Collection of the Supreme Court of the United States

Reproductive rights activists have been disappointed that the U.S. Supreme Court has so far allowed Texas' draconian anti-abortion law to go into effect, which they view as a troubling sign that Roe v. Wade is likely to be overturned. And on Monday, Justice Elena Kagan — one of three out of nine high court justices appointed by a Democratic president — was vehemently critical of the Texas law's architects.

The 61-year-old Kagan said during oral arguments Monday over the Texas ban that the "entire purpose of the law" is to "find the chink in the armor" of a basic principle of "how our government is supposed to work." Instead of using law enforcement to implement the ban on abortions after six weeks, the Texas law outsources that function to ordinary citizens who are empowered to bring hefty lawsuits seeking up to $10,000 from anyone who assists a woman obtain an abortion in the state.

After many years, the native New Yorker said, "Some geniuses came up with a way to evade" the "principle that states are not to nullify federal constitutional rights and to say, 'Oh, we've never seen this before. So, we can't do anything about it.' I guess I just don't understand the argument."

Kagan, nominated by President Barack Obama in 2010, argued that if individual states could pass laws that violate constitutional norms, "we would live in a very different world from the world we live in today."

"Essentially," Kagan said, "we would be inviting states —all 50 of them, with respect to their unpreferred constitutional rights — to try to nullify the law that this court has laid down as to the content of those rights. I mean, that was something that until this law came along, no state dreamed of doing."

Slate's Mark Joseph Stern noted how "exasperated" Kagan sounded:

The U.S. Supreme Court moved even more to the right in 2020, when liberal Justice Ruth Bader Ginsburg died and was replaced by the Justice Amy Coney Barrett — a far-right social conservative who is likely to vote in favor of overturning Roe v. Wade. Six of the High Court's nine justices were appointed by Republican presidents, while Kagan, Justice Sonia Sotomayor and Justice Stephen Breyer are the only remaining Democratic appointees.

However, many observers noted that though, in the long term, abortion rights are likely to be sharply restricted by this court, the Texas law did not receive a friendly welcome on Monday before the justices. Even if they ultimately want to overturn Roe, some of the conservative justices seem dissatisfied with method Texas has taken to circumvent the court's precedents in this instance.

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