Well, that didn’t take long.
Most members of the Georgia Supreme Court, like their counterparts in DC, appear to be merely Republican foot soldiers.
A week ago, Fulton County Superior Court Judge Robert McBurney struck down the state’s ban on abortions after six weeks of pregnancy, the so-called “heartbeat bill.”
On Monday, the state high court — by a 6-1 vote — overruled McBurney‘s ruling and reinstated the law. It was the second time in two years that the court has nudged the Fulton judge aside on abortion.
In November 2022, McBurney ruled that the “heartbeat” law, enacted in 2019, was null and void. He said Georgia legislators were simply play-acting when they voted it in. He said they knew full well the law was unconstitutional because Roe v. Wade was still the law of the land.
By 2022, Roe had been overturned and Georgia’s 2019 bill slid into being law.
The Fulton judge wanted to throw the hot potato back to the legislators, to have them again make the hard and largely unpopular decision to severely limit abortion. Do it when people are watching, when the vote really matters.
Many Republican legislators did not want to revisit the effort, figuring they could catch flak from some voters who usually support them.
Credit: Arvin Temkar/AJC
Credit: Arvin Temkar/AJC
So a week after his 2022 ruling, the state Supreme Court gave those legislators cover and stayed McBurney’s ruling.
Later, in 2023, the high court considered the matter and overturned McBurney. And sent the case back to him.
Last week, he again shot down the law, saying it was offensive to women’s inalienable rights to privacy and control of their own bodies. It turned them, he said, into government-mandated “human incubators.”
To make sure people caught his drift, McBurney even mentioned the Handmaid’s Tale, the dystopian TV series where fertile women are state-owned baby factories.
“There is nothing narrow about a law so blunt that it forces a woman to allow a fetus grow inside her for months after she has made the difficult and deeply personal decision not to bring the pregnancy to term,” he wrote.
(The state argues that fetuses who are older than six weeks but still are not yet viable outside the womb have the right to life.)
But just like 2022, the state Supreme Court this week did not wait long to override McBurney. The justices, without comment, granted a relatively uncommon emergency supersedeas, which is legalese for telling a lower court judge, “hold on there, little buddy.”
Again, McBurney’s ruling has been put on ice until it can — again — be argued before the higher court.
Credit: TNS
Credit: TNS
Anyone want to wager how they’re going to rule?
Supreme Court Justice John Ellington was the only member of the high court in this case to go against his tribe. Ellington wrote that McBurney heard the case, made a ruling on the facts and that the lower court’s decision was not a “close call.”
“Fundamentally, the state should not be in the business of enforcing laws that have been determined to violate fundamental rights guaranteed to millions of individuals under the Georgia Constitution,” Ellington wrote in his dissent.
Ellington, who decades ago called himself a “conservative Democrat,” is a rare breed on the Supreme Court in that he won election to his seat. Normally, as in almost always, justices play cute and “retire” before their term ends, allowing the governor to pick a successor.
This makes the appointed judge an incumbent and virtually unbeatable in future elections. It’s a good-old-boys (and girls) club that fosters groupthink and, one might argue, allegiance to he who put him on the bench.
The Supremes have spanked McBurney before — overturning the murder conviction in the case against Tex McIver, the clueless lawyer who shot his wife.
There’s been talk in the legal community of some sort of rift between McBurney and the Supremes, that they think the Harvard-educated judge is antagonistic, too independent-minded and kind of a wisenheimer in his rulings.
But in late August, the Supreme Court gave McBurney its “most prestigious” accolade, it’s Amicus Curiae Award, translated Friend of the Court.
Credit: State Supreme Court
Credit: State Supreme Court
While giving the award, Chief Justice Michael Boggs noted McBurney can “stay a safe distance” from the justices, a joking reference to any previous bad feelings there might have been.
Boggs noted McBurney’s “integrity” and “intellect” in connection with being an initial member and chair of the state hearing panel that metes out punishment against wayward judges.
Barely a month later, McBurney aimed that intellect against the award-givers. He noted the higher court often argues that the Constitution says what it says, not what they say.
But McBurney, who likes to insert digs into his footnotes, wrote: “the meaning of the Constitution is no more fixed than is the composition of the majority in the highest courts of the land — especially when formerly bedrock principles such as stare decisis appear to be on the wane.”
(Stare decisis is adhering to prior court precedents.)
Later, he added, “Women are not some piece of collectively owned community property the disposition of which is decided by majority vote.”
We shall see.
About the Author
