Georgia’s brief in Supreme Court abortion case takes on Black judge who rebuked Trump
By David Pendered
Georgia’s friend-of-the-court brief in the abortion case the U.S. Supreme Court has agreed to hear calls on justices to “condemn” language used by the Black federal judge in his 2018 ruling against the abortion law passed by Mississippi’s legislature.
The same judge took on President Trump’s criticism of the judiciary in the judge’s 2019 speech at the University of Virginia. U.S. District Judge Carlton Reeves said in prepared remarks, in accepting the Thomas Jefferson Foundation Medal in Law:
- “[W]hen the Executive Branch calls our courts and their work ‘stupid,’ ‘horrible,’ ‘ridiculous,’ “incompetent,’ ‘a laughingstock,’ and a ‘complete and total disgrace,’ you can hear the slurs and threats of executives like George Wallace, echoing into the present.”
President Obama nominated Reeves to the federal bench for the Southern District of Mississippi on April 28, 2010. Reeves was confirmed by the Senate Dec. 19, 2010, according to a report by ballotpedia.org. He was the second African American ever appointed to a federal judgeship in Mississippi, according to a report by his alma mater, the UVA School of Law. Reeves’ titled his remarks at UVA, “Defending the Judiciary: A Call for Justice, Truth and Diversity on the Bench.”
The friend-of-the-court brief in the Supreme Court case that calls out the judge’s language was submitted by Texas and signed by attorneys general for 17 additional states, including Georgia Attorney General Chris Carr, who is seeking reelection.
All 17 AG’s are Republicans, one is female, two are Black. Two left office under clouds – the Alaska AG for sending 558 text messages in a month to a female subordinate who had asked him to stop; the Indiana AG after the state Supreme Court suspended his law license following accounts of misdemeanor battery, which followed claims of sexual misconduct filed by four women whose stories were found credible but insufficient for prosecution.
The AGs’ brief supports the Mississippi law that outlaws abortions after the 15th week following the last known menstrual cycle. It submits three arguments, including the final one, which contends Reeves’ ruling went too far in expressing the judge’s negative outlook on Mississippi lawmakers:
- “[T]the district court performed its own non-record research and opined that the law reflected Mississippi’s general oppression of women, racial minorities, and homosexuals….
- “[T]his Court should condemn the district court’s rhetoric. A district court is required to presume good faith, not the opposite. The district court turned that rule on its head and reached into Mississippi’s past to ascribe aspersions on today’s legislators for doing their jobs.”
Reeves’ ruling in the case provides in footnotes a commentary and citations that include this history lesson:
- “Many view Roe as the starting point for abortion in America, but abortion in America did not begin in 1973. In Mississippi, when the 1890 constitution was adopted, abortion was legal until ‘quickening’ which was between four and five months after the last menstrual period. See Pro-Choice Mississippi v. Fordice, 716 So. 2d 645, 650 (Miss. 1998).”
Reeves appears to send a message at the outset of his opinion:
- “So, why are we here? Because the State of Mississippi contends that every court who ruled on a case such as this ‘misinterpreted or misapplied prior Supreme Court abortion precedent.’”
The footnote that expressly cites the Mississippi Legislature is No. 40 and begins:
- “The Mississippi Legislature has a history of disregarding the constitutional rights of its citizens. See, e.g., Alexander v. Holmes Cty. Bd. of Ed., 396 U.S. 19, 20 (1969) (15 years after Brown v. Board, Mississippi continued to maintain segregated schools, prompting the Supreme Court to tell the State that it was ‘the obligation of every school district . . . to terminate dual school systems at once and to operate now and hereafter only unitary schools.’)….”
- The footnote cites court rulings that struck down laws that prohibited same-sex marriage; abortions in the early part of the second trimester; adoption by same-sex couples; and an elections law conceived in “furtherance of racial discrimination.”
The Supreme Court agreed May 17 to consider one aspect of the lower court’s ruling in the session that begins in October:
- “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
Meanwhile, Georgia’s attorney general is actively managing the state’s appeal to federal court regarding Georgia’s “heartbeat” bill. The case is tentatively set for oral arguments the week of Sept. 20, according to a scheduling brief filed May 14 in the U.S. Court of Appeals in Atlanta.
On May 19, Carr made a discretionary decision to notify the appellate court that the Supreme Court had agreed to hear the Mississippi case. Carr’s letter observes that the initial ruling against Georgia’s heartbeat law relied on some case law to be reviewed by the Supreme Court:
- “The Supreme Court’s resolution of Dobbs will be relevant to this case. In finding the LIFE Act’s heartbeat restriction categorically unconstitutional, the district court invoked the same purported per se rule that the Supreme Court is now reviewing in Dobbs (holding that ‘a prohibition or ban on abortion at any point prior to viability is inherently unconstitutional – no matter what interests a state asserts to support it’). In fact, the district court in this case favorably cited the lower court decisions in Dobbs in its summary judgment order, its preliminary injunction order, and its order foreclosing expert discovery about the State’s interests.”
Georgia’s law bans most abortions after six weeks, following the last menstrual cycle. This is the date by which advocates say a fetal heartbeat can be detected. House Bill 481 is titled the Living Infants Fairness Equity Act, or LIFE Act.
Gov. Brian Kemp signed House Bill 481 in 2019. U.S. District Judge Steve Jones permanently halted the law’s enforcement, and the state appealed the ruling to the U.S. Court of Appeals in Atlanta.