With important court decisions I often start by reading the dissent. For those of you keeping score at home, that would be on page 29 of Planned Parenthood v. Mayes, the April , 2024 decision by the Arizona Supreme Court, 4-2, criminalizing almost all abortions in that state.
It’s noteworthy that the dissent was written by Vice Chief Justice Ann A. Scott Timmer of the Arizona Supreme Court, joined by Chief Justice Robert M. Brutinel, in which they respectfully but “vehemently” disagree with the majority. In this case, apparently, their status and seniority carried no weight.
At issue is the “plain meaning” of two Arizona statutes and how they interact. That phrase appears eight times in the decision, four in the majority opinion, four in the dissent.
Both sides claim to be merely working out a legal problem, avoiding ideology, religion and politics. The majority says, “This case involves statutory interpretation—it does not rest on the justices’ morals or public policy views regarding abortion … [W]e merely follow our limited constitutional role and duty to interpret the law as written.” The dissenters say, “The majority’s opinion today will undoubtedly be derided by many as result-oriented or a reflection of individual justices’ ideology. My dissenting opinion will probably spark similar criticism. That is the cross borne by all judges in controversial social-issue cases like this one. But nothing is further from the truth. In upholding our oaths to follow the laws of this state, we simply disagree—vehemently—about what those laws mean.”
I’m not buying it. I’m sure the justices believe what they say, but judges have been singing that same hymn for centuries. Common sense about human nature tells us that try as we might, our opinions, beliefs and prejudices drive our decisions as much as our logic.
Chris Geidner (the “Law Dork”) explains the law part. He sums up the majority opinion by saying, in essence, that’s not how this (statutory construction) works.
And the good folks at FrameLab, Dr. George Lakoff and Gil Duran, explain how most of our “reasoning” is not logical at all.
If you are a normal human being, and not a litigator, you might wonder, “If the law is plain, how can judges disagree (“vehemently”) over its meaning?”
But if you are a litigator, you know that lawsuits often devolve into a jump ball situation, where the winner is simply the one who jumps the highest, and the fastest.
There might be two bits of good news to come out of this horrible decision. First, the decision is stayed, and the trial court may extend the stay. Second, the national outrage triggered by the decision might compel some potential voters to get off the couch, register, and vote against Trump and Trumpism in November.
Meanwhile…