Punting On First Down

I was discussing with Cassandra last week the strange case of Ayotte v. Planned Parenthood in which the Supreme Court unanimously (!!!) vacated and remanded a First Circuit decision holding New Hampshire's Parental Notification Prior to Abortion Act unconstitutional.**

Basically, the Court completely side-stepped the issue the case presented and sent the matter back to the District Court to find a way "to render narrower declaratory and injunctive relief." (*cough* What?)

Moreover, by deciding not to decide the case and by rendering a non-opinion a mere six weeks after oral argument, the Court transparently signalled that it intended this result long before any attorney ever opened his mouth.

"Why would they do that?," I wondered. They know that the issue of parental notification won't be going away on its own. In addition, it's a Section 1983 claim, which means if Planned Parenthood prevails it gets attorney's fees from New Hampshire. Therefore neither side will lay down or settle the dispute, and merely sending it back down to begin it's inexorable years-long march back to the High Nine spits in the face of "judicial economy." If they didn't want to decide the case, why didn't they just deny certiorari and let New Hampshire fix the statute?

Because they do want to decide the issue...just not right now.

James Taranto of the Wall Street Journal has evidently been thinking the same thoughts over the weekend, and he's penned a pretty good analysis of the situation. At bottom, it's a political decision masquarading as a non-decision. (Duh). But he goes into some depth and lays out all the reasons for the Court's punting the case, how the Court made a calculated decision not to decide, and why it was a good idea. Definately worth a read.



** A quick reach down between my legs informs me that this discussion will not be on the merits, or lack thereof, of any argument where the words Roe v. Wade might appear. Suffice it to say that in the last 33 years more ink and blood has been spilled over that lousy two-legged stool (in a legal sense) than this nation deserves. Somebody has to grow a pair and deal with it once and for all. I don't care what the outcome is anymore, either. Just so's I never have to hear about it again.