Most expedited Supreme Court hearing, ever?

From Amicus's perspective, if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms. While the political valences of those issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and Casey, many States view Heller as wrongly decided. Those States, with the help of many circuit courts, have showed an ongoing refusal to accept the holding in Heller and a continuing creativity in seeking to circumvent any protections for, and to chill the exercise of, Second Amendment rights. It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms.

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camo556 said:

So the Firearms Policy Coalition filed a brief in Whole Womens health, see here:
https://reason.com/volokh/2021/10/22/the-firearms-policy-coalition-targets-texas-s-b-8/




And the court granted cert and scheduled arguments for Nov 1st.

https://reason.com/volokh/2021/10/22/supreme-court-grants-certiorari-in-texas-s-b-8-case/

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DanGuy48 said:

Talk about strange bedfellows…interesting.

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SkiPatrolDude said:

I am glad to see this.

A persons credibility is only as good as the consistency they apply across their own arguments / opinions.

This is not something often seen from either side of the political aisle, nor on this forum.

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Among the issues raised in No. 21-472 is
whether the administration of the USF program by
private parties has resulted in a violation of Blanca’s
property and procedural due process rights. In No. 21-
588, the United States argues, inter alia, that the State
of Texas impermissibly employs private parties to
enforce State law for the purpose of avoiding judicial
review of a regulatory program impinging upon the
constitutional right to abortion. Given the similarity
of the cases regarding governmental use of private
parties to violate constitutionally protected interests,
Blanca is submitting the instant amicus brief to ensure
that the Federal Government fairly and equally uses
its sovereign authority to protect the constitutional
rights of all citizens of the United States.

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1. Texas cannot shield from judicial review a state
law which impinges upon the constitutionally protected
abortion right by empowering private citizens, rather
than state officials, to enforce a state health law.
2. But the FCC can shield from judicial review
USF administration which impinges upon Blanca’s
constitutionally protected property right because
“private” corporate entities, NECA and USAC, enforce
Federal telecom law. Slip Op. App. 40-41; FCC3 App.
54 ¶ 5, 76 ¶ 30 (USF settlement and day-to-day USF
administration are unreviewable “private” activities
which do not implicate governmental functions).

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In No. 21-588 the United States seeks
constitutional uniformity and argues that judicial review
guards against nullification of constitutional rights by
private parties. Petition for a Writ of Certiorari Before
Judgment at 31-32, No. 21-588, filed 10/18/21. Sauce
for the goose is sauce for the gander. Blanca is entitled
to consistent treatment and the same access to judicial
review and protection from private enforcement which
interferes with its constitutional rights. However, the
Waiver, without any analysis whatsoever, unfairly and
unequally delivers a constitutional rights hierarchy where
judicial review is shielded by the FCC’s use of private
parties and the abortion right is protected and preferred
over Blanca’s property right, even though the property
right is textually guaranteed.

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camo556 said:

Why would Blanca Telephone file an amicus brief?









http://www.supremecourt.gov/DocketP...7142353768_211027l_Blanca Amicus as FILED.pdf

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lazarus said:

Pretty sure not actually right here. Blanca is arguing that a government entity can’t charter/employ/fund a “private” entity to operate any of its work. In this case administration of the universal services fund. I might have missed it in what Blanca is citing in their Amicus brief, but there is no overlap between a Texas law that allows private parties who are not injured by a party’s actions (no tort) to sue and federal funds administered by a private party.

I am not saying Blanca has no reasonable argument why the FCC might be in the wrong (though I think they are wrong), but there isn’t really even a mild tangential link between the examples.

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camo556 said:

Blanca is saying that the US .gov is contradicting itself. On the one hand, Texas can be sued for civil rights violations because it authorized private parties to violate civil rights, but on the other hand they are claiming that the FCC is beyond review because USF is a private party.

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lazarus said:

I understand. But I don’t think their argument has as much tie in to the case at hand as they’d like.

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camo556 said:

I cant fault them for trying. As Alex Baldwin said, you miss 100% of the shots you dont take.

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But other members of the court’s conservative wing openly worried about the prospect that S.B. 8’s enforcement scheme could be used to negate other constitutional rights. Kavanaugh cited a “friend of the court” brief by the Firearms Policy Coalition, a gun-rights advocacy group, arguing that the scheme could, as Kavanaugh put it, “easily be replicated in other states” to target gun rights, free speech rights, or religious rights.

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