Justice Kagan, and mostly Justice Sotomayor, are focused on building connections with Justice Barrett to potentially sway her vote. Justice Jackson, however, has a different approach.
In Moyle, Justice Jackson accuses Barrett, Chief Justices Roberts, and Justice Kavanaugh of avoiding the case due to a “convenient” argument by Idaho.
Some of my colleagues seem to see this convenient argument as a significant change that diminishes the conflict between state and federal law enough to render a ruling unnecessary. See ante, at 6–7 (Barrett, J., concurring). However, it is legally and factually improbable to claim that Idaho’s current position actually resolves the conflict between their law and EMTALA.
She accuses the Barrett-troika of “shirking its duty.”
It is odd that this Court would fail to fulfill its obligation to address a pressing legal issue based on arguments that defy medical realities.
She criticizes the middle-three for using an “escape hatch.”
Some of my colleagues are holding onto Idaho’s counsel’s statements as an escape hatch to justify avoiding making a merits ruling in these cases.
And accuses them of taking a “mulligan.”
We cannot simply go back to how things were before the Court got involved in this matter. Our intervention has already affected this litigation process. It is too late for the Court to take a mulligan and pretend this never happened.
Justice Jackson echoes Justice Alito’s dissent and appears frustrated with Justice Barrett. Justices Sotomayor and Kagan are more focused on immediate outcomes.
Furthermore, Justice Jackson calls out Justice Barrett for suggesting Idaho’s case may have merit.
Despite the clear legal issue and the urgent need for a resolution from this Court, six Justices refuse to recognize the rights protected by EMTALA. The Court has not rejected Idaho’s theories, leaving the issue unresolved.
Additionally, Justice Jackson criticizes the Fifth Circuit for not upholding EMTALA.
Instead of making a decision, the Court delays. How long must pregnant patients wait for an answer? Will chaos continue to reign where lower courts allow States to undermine federal law, causing suffering for those in need of medical treatment?
As mentioned previously, the petition from the Fifth Circuit will likely be discussed at the long conference. It is expected that Jackson and the three conservatives will support cert. If Trump is reelected, the case may remain unresolved.
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