Wednesday, December 01, 2021

How To Read The Supreme Court Arguments

Starting from the bottom up: this is true. MS never mentions women in its argument; only "killing humans" (which is where the first tweet comes from; we'll get back to that). The reasons for that are obvious: the question of abortion rests on competing interests, and which interests the state is supposed to make primary.  Interestingly, this very question is being discussed in argument as I type (I had to take a phone call.  I heard the MS argument, but just got back to listening.  I'm not sure who's talking now, but it's clearly in favor of Roe and Casey.)

So, recognizing these tweets represent only a portion of the argument, let's take them from the bottom up, because some of what Charlie hears here, is not what he thinks he hears.

"Undue burden" is a legal matter that is mostly up to the judge defining the term under the facts and law presented in the case at hand.  Neal Katyal on MSNBC, where I was listening earlier, pointed out Justice Roberts is not all that concerned with the undue burden on women under some of the Court's abortion rulings where states like MS have only one abortion clinic in the entire state, forcing women to drive hundreds of miles to access an abortion (most of those limitations imposed by state law on abortion access).  So MS knows who it's talking to with that issue, because the presumption is Roberts will be a "swing" vote, especially if he can get one more justice (Kavanaugh, smart money says) to swing with him.  Most of Justice Breyer's argument, for example, or rather questions, was about the precedent of Roe and Casey.  

Justice Sotomayor, again working toward the beginning of those tweets, was probing the MS case, but also presenting an argument to Barrett and Thomas (at least).  That was perfectly obvious when Barrett tried to interrupt Sotomayor (politely) with her questions, attempting to bail out MS.  Charlies says Barrett failed.  Well, to Charlie's ear she did.  But she was talking to Sotomayor.  The interesting question now is whether or not this debate continues in concurring/dissenting opinions.

The context of that tweet, and the two immediately above it, is a discussion begun by Justice Breyer regarding the authority of precedent, or the legal doctrine of stare decisis.  MS argued that Roe and Casey are not "in the Constitution."  Sotomayor pointed out that neither is Marbury; or Obergefell, Loving, Griswold (the contraceptive case that served as a partial basis for the "right to privacy" in Roe), a whole string of cases.  She pretty much shredded MS's argument on that point.  Barrett tried to save it by shifting the grounds to a different issue.  That's where the debate is going to be among the justices on that issue, I expect. What Sotomayor is saying in the quote is Breyer's point drawn from Casey:  that some cases cannot be overturned, at least not lightly, because it calls into question the legitimacy of the Court itself.  That's an interesting argument, it's a core argument this morning; but it may not mean much to true believers and bomb throwers like Thomas and Barrett. It may, however, be enough to get 5 votes against MS's position.

The first tweet needs a bit of context:  MS, in its brief if not in oral argument, rests its position in part on "a small number" (Sotomayor's term, IIRC) of doctors who claim a fetus without even a developed cortext can still "feel pain" as evidenced by responses to stimuli.  Justice Sotomayor pointed out people considered "brain dead" (and therefor dead) can show a similar response to stimuli.
That is, indeed, largely the point of oral arguments in appellate proceedings.  You're watching the sausage be made.  You gonna give up sausage because you had to watch the pig get slaughtered and ground up?
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