Advisory Opinions - The End of Roe and Casey?

Episode Date: December 2, 2021

It's an almost-all-Dobbs podcast, as David and Sarah discuss the oral argument that surprised the nation. Could Roe v. Wade and Planned Parenthood v. Casey actually fall? David and Sarah talk about the court's decision-making process from here and the history of judge-flipping post-argument, and they identify the key moments in yesterday's argument. Also, they give their listeners a vital challenge--and if they can meet that challenge, then Advisory Opinions will be the indisputable flagship of the Dispatch podcast fleet. Listen to learn what the challenge is.   Show Notes: -Dobbs v. Jackson oral argument transcript -Ginsburg’s remarks on Roe -David in The Atlantic: “How Roe Undermined Itself” -Washington Post: “Justice Kennedy’s Flip” Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at TNVacation.com. Tennessee sounds perfect. Maple syrup, we love you, but Canada is way more. It's poutine mixed with kimchi, maple syrup on hollow hollow, Montreal-style bagels eaten in brandon manitoba here we take the best from

one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore welcome to the advisory opinions podcast this is david french with sarah isger and a special dobbs edition dobbs oral argument edition of advisory opinions uh we've been bombarded with emails sarah saying where's the emergency pod but truth be told that would not be very dispatchy right you know at the dispatch we got to chew on it for a minute, think about it for a minute. So consider this the non-emergency pod,

but really the beginning of the analysis. But before we get to it, before we get to it, Sarah, husband of the pod, Scott, just won a big victory against a dumb Texas law. That's true. That's true. So the Texas social media bill that was quite similar to the Florida one that we've talked about before, that was in short, trying to ban any social media from the state that discriminated against conservative viewpoints, which is clearly content-based. Scott, husband of the pod,

represented the trade association for the social media companies and won that injunction in Texas. So just got to get that. You know, when we get close we get, uh, close to the pod victories, we got to acknowledge them. I will say the argument was on the Monday after Thanksgiving, which, um, made our Thanksgiving probably quite different from other people's. Well, so let's, I know I just wanted to acknowledge that, give a tip of the cap,

give a tip of the cap to Scott, but let's move on to Dobbs. So oral argument yesterday, there has been an enormous amount of commentary surrounding the oral argument. We're going to add to it and we're going to do it in this structure. So what we're going to do first is Sarah's going to tell you what's going to happen next. So what are the steps from here at the court? I'm going to throw in a little bit of historical perspective there. Then we're going to go to general impressions of the argument, and then we're going to go to specific moments.

So we're going to actually have a real structure here. So Sarah, the argument, many of us heard it, many heard it live. As soon as the case was deemed submitted, just take it from there. What happens? So, after the case is submitted, as the Chief Justice says at the end of the oral argument, they go about their lives for the rest of the week. And then on Friday morning, they will meet for what's called conference. The nine justices go into their conference room. This is where the tradition of the junior justice becomes fun and exciting. There's no clerks allowed in the room. So the only way you ever really know what happens in conference is justices

notes that are released posthumously or maybe a justice leaks to the press or tells their clerks and the clerk leaks to the press. But that's all to say, we don't know a lot about what goes on in conference beyond what they tell us. However, we do know about the traditions of the junior justice. And remember, Justice Breyer was the junior justice for 11 years, I believe. And that meant that anytime they needed to pass notes to a clerk or vice versa, the junior justice is the one who gets up and answers the knock on the door and has to retrieve the note. So you have to sit close to the door, I guess. But the chief justice will open the conversation in that room.

He has said that he ensures that everyone has the chance to talk once before anyone can talk a second time. And basically what they're doing is taking a head count, not just necessarily on the outcome of the case alone, but also on the reasoning. And then the most senior justice in the majority assigns the opinion for someone to write. And we have talked a lot about how the chief justice is the most senior justice and therefore when he's in the majority, it's a very powerful position to get to assign who gets to write it. That controls a lot of how these opinions come out. In a case like this, if the chief were in the majority, I'd imagine he'd assign it to himself.

But as we'll discuss, he may or may not be. And now when we talk about this, the assigning of the opinions, that's not necessarily when they do this initial headcount, that's not necessarily the end of the story. That's right. Votes switch a lot in the intervening. So it's December. This opinion is not going to come out until June. And that's not just because they save their hit parade cases till June. It's actually because of this whole writing process.

So the person who was assigned the majority opinion will be writing. Someone might be writing a concurrence. There might be a dissent or two being written. And all of those drafts get circulated to all the other justices so that their opinions end up responding to one another's concurrences and dissents. And of course, you still have to have a justice join your opinion. And you have to have five total for it to be the majority opinion, regardless of who got assigned to write the majority opinion at conference. And we know that votes switch in that intervening period, depending on how the majority opinion is written. And sometimes depending on how those concurrences are written, all of a sudden the concurrence will be the one with five votes instead of the quote unquote initial majority opinion. instead of the quote unquote initial majority opinion.

And this has become, especially amongst those who follow the Supreme Court closely, a pretty well-known fact. And so what you're going to see over the next several weeks and months is a continued volley of public commentary about this case. A volley of public commentary launched in the hopes of influencing what happens between oral argument and the issuance of the opinion. And it's not just, this isn't some sort of a made-up phenomenon.

I mean, this is going on, especially in abortion cases. I'm going to read to you a part of a story from September 4th, 1992 in the Washington Post. It begins like this. The Supreme Court on June 29th affirmed instead of overturning the Roe v. Wade abortion standard because Justice Anthony Kennedy changed his vote. A flip attributed in court circles to liberal constitutional scholar Lawrence H. Tribe's pulling strings backstage. So here's more of it. What happened to him is obscured by judicial secrecy, a curtain of silence broken only by whispers of law clerks and a small paper trail.

When the court held its conference on the Casey case in the fall of 1991, Kennedy lined up with a 5-4 majority supporting Pennsylvania statute regulating abortion. Chief Justice William Rehnquist assigned himself the opinion which would undercut Roe's elevation of abortion rights as an inviolable

constitutional right. The reason Kennedy flipped and formed a 5-4 majority affirming Roe is attributed by some critics to his desire for approbation by journalistic and legal establishments committed to judicial activism, in particular, Larry Tribe. This is a legendary story. Safe to say, Sarah, a legendary story. Now, are all the details here correct? I think, I don't know, but I think there is a wide degree of consensus that Kennedy did in fact flip on Casey in 1992.

did in fact flip on Casey in 1992. And therefore, there is a lot of consensus that right now, even after the initial vote is taken on Friday, that there's still a lot of work to be done to try to influence the court. Is that a fair way of describing the situation? Absolutely. Yeah. And don't forget, of course, in the Obamacare case, word on the street, according to Jan Crawford Greenberg's reporting, is that Roberts changed his vote midway, really, through deliberations or writing, I guess I should say. Well, and there's some speculation in the Fulton case that the Alito concurrence was going to be

an Alito majority opinion. So yes, so. So that's all to say everything we're about to say about what we think we learned at oral argument and where I think the votes are quite clearly as of yesterday at 1230. It doesn't mean that's where the votes will be in June. And unfortunately, it means that we sort of have a non-disprovable theory, right? Because I'm going to tell you that I think I know where every single justice is, which is really unusual in any Supreme Court case to feel like every justice showed their vote during argument. But I feel like that happened yesterday, but it weirdly doesn't actually mean that's how the case will turn out. Right, exactly. So I think you said it very well that this, what we just heard,

was unusual clarity in an oral argument, but not finality. So clarity, but not finality by any stretch. So without further ado, Sarah, you tweeted out something where you thought there was a 5-1-3. So just walk us through your 5-1-3 formulation after you listen to the argument. Yeah. So I listened twice. I read once and that took me to whatever time I tweeted that roughly 9 PM where I was like, okay, I don't see like, this isn't, there's no particular wiggle room here. This is it. You have five votes for overturning Casey. You have one vote for getting rid of the viability test, which the chief justice mentioned repeatedly was not actually part of the holding in Casey and was dicta citing Justice Blackmun for that. And so he would, in fact, very much uphold Roe and Casey, but get rid of the viability test and uphold the Mississippi 15-week ban.

So it would be a concurrence of one. And then you'd have three dissenters on stare decisis. Right. I mean, that's exactly how I counted it as well. I thought there were five votes, and I would say five votes to not just overturn Casey, but the essential holding of Roe on the abortion as a fundamental right in the 14th Amendment, essentially ruling. And I took it as a pretty darn solid six to uphold the Mississippi law. The Mississippi law is getting upheld. Yeah. So yeah, I think this is worth getting into a little because there's places where I think there's wiggle room and there's places where I don't think there's wiggle room. I think there are six votes to uphold the Mississippi law and I don't think there's wiggle room on that. I don't see anyone changing their vote to strike

down the Mississippi law. So in that sense, it's 6-3, and I think it will be 6-3 in June. Where I am less 100% sure is the five. And let me tell you a little bit why. So first of all, let's just start out with like, David, this whole time, you thought there was a really good chance or reasonable chance of this case overturning Roe and Casey,

and I did not. And I just want to say after argument, you were way more right than I was. Even if that's not what ends up happening, you were still way more right than I was. I'm sorry, Sarah. Something happened in the transmission. What did you just say? Yeah. No, it's hard to understand sometimes. But also, there's been a lot of speculation over who the fourth vote was to take this case in the first place. And I've said repeatedly that I didn't think it made sense that it would be Kavanaugh or Barrett. And so I wondered whether in fact, you know, Kagan nudged

Breyer to do it or something to, you know, do it while he was still on the court. Um, I changed my mind. I think it was Kavanaugh. Interesting. Uh, so let me walk through the five justices so obviously thomas is where thomas is vote to overturn rowan casey he's been there he's the og um alito was less spicy than usual but i think because he knew he didn't need to be. Also a vote to overturn Roe and Casey, and it wasn't really, his questions weren't all that interesting in that sense. But here's where it gets fun. So Justice Gorsuch has never really said anything about abortion, ever. We've never known where he is.

He didn't have a record as a circuit judge on that. He didn't have any writings on it. As best we can tell, Neil Gorsuch didn't care about abortion, hadn't thought a lot about abortion maybe. And so this argument is like pins and needles. We know where he is ideologically. We know how he reads the constitution, but abortion is kind of its own weird thing,ortion distortion, right? So where was Gorsuch going to come down? And he asked remarkably similar questions to both of the advocates. And remember, it was Scott Stewart, who was the Mississippi Solicitor General, arguing to uphold the ban. Uh, uh, Rickleman was the woman, uh, representing the center for reproductive rights. And then Elizabeth pre-logger is the U S solicitor general. She got

time as well to advocate for striking down the law. Uh, Gorsuch asked the same question to Rickleman and pre-logger, which was basically, uh, so you're saying that if we get rid of the viability line, there is no replacement. That would be unworkable. There wouldn't be any other principled way to do it. And at first listening, you might think that therefore Gorsuch was interested in just that viability line conversation that the chief is clearly having a little colloquy on viability. But no, you listen to it a second time, read it a few times. I listened to that question quite a few times just to make sure. No, he was talking directly to the chief and saying, I know you think you can just get rid

of the viability line and uphold Casey and Roe, but every single advocate here is telling you that is unworkable. There is no middle measure. You must do all of one or all of the other. So that's Gorsuch. Yep. And then you had Barrett. All of her questions were on stare decisis. So what you're saying is, if we strike down Roe and Casey, would we have to strike down Obergefell or Griswold or Brown v. Board of Education? To which the Mississippi Solicitor General very wisely said, no, Justice Barrett, you would not. said, no, Justice Barrett, you would not. And then, of course, there's Justice Kavanaugh. Now, remember, Justice Kavanaugh was in the majority 97% last term. You can't count to five without Kavanaugh. Here's the money line. The Constitution is silent on the question of abortion, neither pro-life or pro-choice, and it's up to the people through legislatures to decide in that case, right? Okay, that's the end of that.

That's five votes to overturn Roe and Casey. Yep, and the Gorsuch comment, which I thought that's a great way of putting it, that he was talking to the chief. The Gorsuch comment is the reason why for day after day, week after week, I've been thinking, I really think this thing is going to be a better vehicle than a lot of people expect. Because the muddiness and the incoherence of that middle ground, if you want to uphold the 15-week ban and you don't want to sort of alter the fundamental holding of Roe, you're just making more stuff up. You and I kind of disagree on this, but Justice Gorsuch was somewhat persuasive. Somewhat persuasive, yeah. And so when Gorsuch said this, because like you, I was very interested in Gorsuch. I felt like I knew where Roberts was, which was yes on the Mississippi law,

no on reversing Roe-Casey. So that meant Gorsuch had been silent. Barrett had been kind of institutionalist, although it would have really surprised me if Barrett was going to be somebody who would come out sort of for this middle ground, at least at oral argument. And then Kavanaugh. So Gorsuch had been silent,

but we knew his ideology. But Kavanaugh, Kavanaugh. Okay, this is the part. I want to read to you the part where I was like, oh, he's going there. And it's different from the one you raised because this is more of an extended soliloquy. Or this is Kavanaugh. And he says, I want to ask about stare decisis and to think how to approach that here. Because there have been lots of questions picking up on Justice Barrett's questions and others, and history

helps think about stare decisis, as I've looked at it, and the history of how the courts applied stare decisis. And when you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed. If you think about some of the most important cases, the most consequential cases in this court's history, there's a string of them where cases overruled precedent. Brown v. Board, outlawed separate but equal. Baker v. Carr, which set the stage for one person, one vote.

West Coast Hotel, which recognized the state's authority to regulate business. Miranda v. Arizona, which required police to give warnings when the right to about the right to remain silent and to have an attorney present. Lawrence v. Texas, which said that state may not prohibit same-sex conduct matt versus you get the idea he just keeps going through these cases and he says in each of these cases and that's a list and i could go on and those are some of the most consequential important in the court's history and the court overruled precedent and as soon soon as he said that, I thought he's going there. He's going there because the big dominant thought that I had as I was listening was

there is not a majority that's on board with the underlying reasoning of Roe and Casey. So if you're going to save Casey, you're going to have to save it through stare decisis. That's how you're going to save it. And when Kavanaugh went in on that list, I thought Kavanaugh is not persuaded by this argument. And that's when, you know, I had been sort of throughout the argument

thinking, huh, huh. This is not going, I mean, this is going more decisively than I expected. And then when he went here, that's when I had the thought he's going there. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right?

It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. certain conditions apply details at fizz.ca so can i run you through the three outcomes that i think are possible at this point please so the first outcome we've obviously talked about a little here which is there's a a 5-1-3 five votes to overturn roe and casey which is then the majority holding for the court which

removes abortion from the federal courts except for rational basis review, as you said, David, and leaves it to the state, the state legislatures, the state Supreme Courts in some cases. And you've written extensively about where sort of all of those states are, but it would return us to a pre-1973 abortion law status, basically. Okay. However, we talked about how votes switch. And I think you never know. So potentially, you could have a majority of the court decide to go on the viability route. So I just want to talk about a little bit about what that would look like, which is if you get rid of the viability line from Casey, and remember, Roe creates the constitutional right to an abortion, but Casey

creates the test. And the Casey test is post-viability, states can do basically what they want. Pre-viability, states cannot place an undue burden on the constitutional right to an abortion. Obviously, a ban would be an undue burden. So basically, you can't ban abortion before viability. But it's worth sticking on this a little bit because as the advocate Rickleman noted from the Center for Reproductive Rights, this is not an undue burden case about discussing whether a regulation is or is not an undue burden. This is a ban case. So the undue burden test is irrelevant. It is only the viability line that we're talking about. And so this is the chief justice's point. Viability was dicta in Casey. It was not part of the holding. The reason for that, by the way, and we've talked about Casey before, but Casey was about three Pennsylvania regulations, parental notification, spousal notification, and a 24-hour waiting period. None of those turned on viability in the Pennsylvania law. Therefore, viability wasn't an

issue. And so although Casey mentions viability many times, discusses this new test about, you know, viability is literally part of the test that they create, because it is not central to the holding about whether to uphold or strike down the different Pennsylvania laws. It is technically dicta. The line from Casey defining undue burden has laws that have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. of a woman seeking an abortion of a non-viable fetus. But the non-viable part, not necessary. So Robert's point is, get rid of the viability line. And then 15 weeks, you then put it under the undue burden test. And Robert's point is, that's not much of an undue burden at that point. You had 15 weeks. It's not that different than 24 weeks, although I find the viability. Well, I want to get to this in a second. And so you would simply keep Roe and Casey in

place, but now everything would fall under that undue burden standard. And we would return per the chief's concurrence in June medical and that Louisiana abortion restriction case, uh, from just a couple of years ago, you would return to a much softer, lighter undue burden touch that then could be at probably 12 weeks. That's kind of the international consists, uh, consensus, but it's also when you have to switch to the more gruesome procedure to remove the fetus, the dilation and evacuation procedure. And so you could simply say that like, well, it's not, you know, that's sort of where the new line is. It's not a viability line. It's an undue burden line. That's just the whole test all the way through. So that's the second outcome possibility. And the third one is that you end up, the chief charms Justice Barrett or maybe convinces Gorsuch that he's wrong about the unworkability. And it becomes a 4-2-3

decision with no majority opinion. They uphold the Mississippi law in that case, but there's no reasoning for the outcome. Now, for those who can count to five, it would mean there were six votes to uphold the Mississippi law, but five votes to uphold Roe and Casey. It doesn't work that way. It doesn't matter. You don't get to count across different justices. You have to have five of the same justices saying the same thing. And so a four, two, three opinion would just mean we're going to do this again in a few years. So David, I think those are the three possibilities. I agree with you. I think those are the three possibilities. I think at the end of the day, what you end up with is the most, if you said after oral argument, the most likely possibility

is still the 513. If you're just going by the oral argument, the most likely possibility is the 513. But those possibilities you outlined, I think you laid it out there. That's what is going to be fought over. That's the terrain of judicial battle for the next several weeks and months. But let me explain one reason why I think the 513 still, and this has gotten a lot of play in the media. And here was the very simple question she asked. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts. So that got a lot of play with a lot of people saying, she nailed it. I mean, she went right in there. She said, this is political. This is political.

This is political. Well, I don't think that line of argument is going to work. And the reason why I don't think that line of argument is going to work is I'm going to go back to 1992. And I'm going to go back to a Ruth Bader Ginsburg speech, a Madison lecture she gave at New York University. explains pretty darn well why a lot of the justices who come from the philosophical tradition that the six Republican nominees do would find that unpersuasive. And a lot of people don't realize this, but Ginsburg, even though she was a staunch supporter of abortion rights, did not like Roe. And she said so on a number of occasions. Not that she would overturn Roe, but she didn't like Roe. And when there are kind of two points

that she made about Roe that are really interesting. One is in this 1992 speech, she said, look, judges do, and she quoted Oliver Wendell Holmes. She said, judges do and must legislate that was the quote that from ginsburg but she says they must do so only interstitially they're confined from molar to molecular motions she says doctrinal limbs too swiftly shaped experience teaches

may prove unstable so in other words so she so she, and she, what's her poetic? I know, I know she had skills. She had skills. No question. So then she says she chose as her prime. What was the prime case example? She chose of a doctrinal limb too swiftly shaped that could prove unstable Roe v. Wade, which she called breathtaking and contrasted directly with the court's, quote, more cautious dispositions in cases, quote, contemporaneous with Roe that involve sex discrimination. And she mused out loud because she said that the Texas law was the most extreme of the pro-life laws in basically in the nation at

the time. She said, suppose the court had stopped there striking down only the Texas law without displacing virtually every state law then in force. What would the future have been like? Which is a really interesting question. And I go into that for a couple of reasons. One, question. And I go into that for a couple of reasons. One, the quick answer to Sotomayor is found in that passage, which was, wait a minute, it was already political that even a justice who went on to become a staunch advocate of abortion rights on the court acknowledged it was legislative, the court acknowledged it was legislative, that Roe was legislative, and that this court, that is fundamentally not the role of the court. And it wasn't just legislative.

It was breathtakingly so. And I think that there's a lot of that reality. If you're going to say that reversing Roe is political, the response is, wait a minute, implementing Roe was political. That Roe from its beginning was a legislative act far more than a judicial act. You don't have to believe me when I say it. Believe Ruth Bader Ginsburg. And I think that that's where a lot of the more conservative justices come down on this question in response to Sotomayor. So I don't know. Did you find that Sotomayor sort of shot across the bow? Do you think that that was something that could ultimately prevail or might fall on deaf ears?

No, but for totally different reasons than you, which is always fun on this podcast. Oh, good. Okay. but for totally different reasons than you, which is always fun on this podcast. Oh, good. Okay. So actually during Solicitor General Scott Stewart's argument, who, by the way, I sat next to at a dinner recently, and I've known Scott since we were in law school. Maybe we had just gotten out of law school. So Scott and I go way back, of course, different Scott, the other Scott in my life. I thought he did a very solid job, but I did not find myself moving into the overturning Rowan Casey necessarily based on

his argument. Now, in fairness, how much new can you possibly present in one of these arguments? So that's not really his fault, but I'm noting it nevertheless. But it's interesting because in the other two arguments, they had the opposite of the intended effect. Now, I don't think they had much of a choice here. There were two paths they could have taken. paths they could have taken. One, argue the law itself that the 14th Amendment did and was intended to protect this liberty interest. The 14th Amendment does guarantee that a government cannot deprive any person of, quote, liberty without due process of law. And then according to sort of the originalist and even textualist tradition at that point, we're trying to determine what, what did liberty mean in that context? Uh, so they could have gone down the path of arguing liberty meant abortion and they did. I'm not saying they never made that argument. Um, it was, I actually thought a relatively strong part,

I actually thought a relatively strong part, although it's a little hard to convince me that abortion was truly part of the liberty interest of the 14th Amendment. Given the history of the 14th Amendment itself, not actually the history of the country, they did go some of the way to persuading me that abortion was more readily available than I would have otherwise thought in 1868, but that the 14th Amendment, the post-Civil War Amendment that was really about race, that was meant to protect abortion? That's hard for me to imagine. But okay, so that was the law argument they could make. And then there was the stare decisis argument. This may not be right, but stare decisis, the doctrine of the court that says we uphold previous decisions should be followed here. And that's really what they spent the majority of their time on. It's also what Sotomayor, Kagan, and certainly Breyer spent their time on. Breyer, by the way, I just, I know I've said this before, I could listen to him all day long.

I find, I just, I love Justice Breyer's long questions. They bring me joy. They sing to my heart. Everything about them. But anyway, but because of spending so much time on the stare decisis part of this, and Casey tried to set out standards for stare decisis and when you do follow stare decisis and when you don't, but frankly, they're meaningless. A lot of time was spent on the reliance prong

of the stare decisis standard. Just to do this little cul-de-sac. Okay. On the one hand, women have, Roe's been on the books for 50 years. Casey revisited Roe, applied the stare decisis factors, upheld Roe, making it extra reliance because then it had already been upheld. On the other hand, Roe has been controversial. It's been in the news that Roe's going to get overturned for the last 20 years of my life. And so how much reliance can you have on something that's constantly under threat? The Chief Justice made the point that really we're talking about the reliance in between 15 and 24 weeks, which is certainly a lesser reliance.

Justice Barrett made the point that it's only the reliance interest in not carrying the sort of physical aspect of carrying a baby to term, not, for instance, the economic, social cost of parenting a child because of the safe harbor laws that have actually gone into effect in existence and into effect post-Casey. But through all of these conversations, David, what came back to me most forcefully is none of that matters

because what you actually are being asked to decide as a justice is, is this Plessy v. Ferguson? That's it. Yep. It's interesting to me, Justice Harlan was mentioned by Scott Stewart, the Mississippi Solicitor General, in his closing rebuttal. So he makes the first argument. He also gets to reserve just a couple minutes at the end to make a rebuttal. And here's how he used his time in the rebuttal. In closing, I would like to say that in its dissent in Plessy v. Ferguson, Justice Harlan emphasized that there is no caste system here. The humblest in our country is the equal of the

most powerful. Our constitution neither knows nor tolerates distinctions on the basis of race. It took 58 years for this court to recognize the truth of those realities in a decision. And that was the greatest decision that this court ever reached. We're running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take innumerable human lives unless and until this court overrules it. That was his ending argument to the court. It's interesting to mention Justice Harlan, A, because surely Stewart knows that it's a favorite of Justice Gorsuch, also of the chief,

also of basically every justice on there. But it brings home the point. The only thing you're really being asked to decide here is Roe Plessy. And honest people can disagree about that. But history judges the Supreme Court justices who weren't Justice Harlan. Yes. Right?

Justice Harlan stood alone in Plessy. And he is heralded for that. And that's it. That's all. The middle way, none of that, is Roe Plessy. And he is heralded for that. And that's it. That's all. The middle way, none of that is Roe Plessy. Yeah. I think that is a real insight here into this oral argument that a lot of people are missing. And there was a real moment in the oral argument. I remember while I was listening to you, I sent you a note that I said, man, Solicitor General Preligar is good at her job. And then we hit an oof moment. Oof. Okay. Here's

the oof. Okay. So the Solicitor General is making the reliance argument. In other words, that people have relied on the ability to have access to abortion. Women have relied on that ability to have access to abortion for a couple of generations now. And Alito responds, there was a lot of reliance on Plessy. The South built up a whole society based on the idea of white supremacy. So there was a lot of reliance. It was improper reliance. It was reliance on an egregiously wrong understanding of what equal protection means. But your answer is, I still don't understand. I still don't have your answer clearly. Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the court is called

on to consider whether it should be overruled? Yes or no. Can you give me a yes or no on that? She held herself well in this moment, I thought. You think? Well, it wasn't persuasive, but she said, and I'm not looking at it. I'm quoting from memory. The court has never done that before. Correct. Yeah. It has never done that before. Correct. Yeah.

It has never done that before. That's the right answer. This court, no, has never overruled in that situation just based on a conclusion that the decision was wrong. It has always applied the stare decisis factors and likewise found that they weren't overruling in that instance. And Casey did that. It applied the stare decisis factors and likewise found that they weren't overruling in that instance. And Casey did that. It applied the stare decisis factors.

If stare decisis is to mean anything, it has to mean that the kind of extensive consideration of all the same arguments for whether to retain or discard a precedent itself as an additional layer of precedent that needs to be relied on and can form a stable foundation of the rule of law. First of all, just before any of that, just shout out to Solicitor General Prelogger because I want her to teach me elocution classes. She is so good at speaking. Set aside the substance.

She's brilliant as a lawyer. But simply her manner of speaking is so clear and precise. And every letter is enunciated without it being prim or prissy or anything like that. She was a law school classmate of mine. And so maybe part of the reason that I'm so in awe is because before it's always been solicitor generals who are much older and they've always been great lawyers. And to hear one of my own generation be so talented is a real treat. So kudos to her because it was a tough argument and she did very well. But there's no good answer to that. And so the problem you have is the real answer is yes, Plessy should have been overruled post haste. You know, that Plessy was so bad and so wrong that it should have been overruled post haste.

But if you say in that moment, Justice Alito, Plessy should have been overruled one minute after it was issued, then you're boxed in. And that brings us back to the Plessy point that you were making. If you're defending Roe Casey and you're talking about Plessy, you're losing. I mean, I think that's a good shorthand. It is the Hitler of abortion. It is the Hitler of abortion. Right.

If you are talking Plessy, unless you're only talking Plessy to Alito and Thomas, unless those are the only people who really care about Plessy, that's not the ground you want to be fighting on. I think you're right. She gave the only answer that she could give. But the way the question was framed and the way the answer was given really implied, it created an implication that said, wait a minute, you got to endure an awful lot of injustice before justice can be done. And I don't think that that would be terribly persuasive to this court. Now, I will say what's interesting to me is for Plessy to be the true analogy, it would need to be the court barring abortion, finding a constitutional prohibition on abortion, at least for me, for it to be a perfect metaphor. But the metaphor that I think does work for Plessy

and why, to your point, I do think Plessy is the Hitler of abortion conversations, is history has such a clear view of it now. Right. And there are very few cases that reach the Supreme Court where you simply know you're deciding something for history. I do not think, for instance, that the court thought in Plessy that that was one of those cases. I don't think the court in Roe thought it was one of those cases. No. But you can be damn sure they knew it in Brown and you can be damn sure they know it in Dobbs. Yes. You raise a great point about Roe. You raise a great point about Roe. When you look back to the 1970s, in the 60s and 70s, there was such an avalanche of precedent that had come out of the court really over a stretch of about 15 years that was

incredibly aggressive, that was incredibly activist, that overturned a lot of precedent for good and for ill. And Roe, I think when Roe was decided, the thought was, well, this is just one of those cases. Roe is in the midst of Miranda rights being created, the exclusionary rule, Gideon v. Wainwright, and those are just the criminal procedure ones. You know, you're right. They were just opinion after opinion. And while some were controversial, they were all accepted. Yeah. Yeah. And by the way, the pro-life movement basically didn't exist in its current form in any way. I mean, Protestants looked at the pro-life cause as sort of a distinctly Catholic thing. And the Southern Baptist Convention, that was a different version of the Southern Baptist Convention, much more sort of moderate in its theology, you might say,

actually endorsed limited, not necessarily abortion on demand, but endorsed abortion rights to some extent. And so there was a lot of thinking that when Roe was decided, not without foundation, that this would just be another case in that list and that there would be this continued inexorable cultural march, kind of in the way that after Obergefell, Obergefell was decided. And right now, how many, is there a movement to, of any kind, consequence at all to overturn Obergefell? None that I'm aware of. None. None. I mean, you might find it in some corners of Twitter, but it just doesn't exist. And I think the consensus thinking was at the time, Roe plus five years, no one's talking about Roe. But that is not the history.

Yeah, which does make it similar to Plessy, by the way. Plessy never went away. Right. And Justice Alito is obviously correct. I think he actually undersold it, that the South based an entire economy on white supremacy. I think he actually undersold it, that the South based an entire economy on white supremacy. I mean, let's be real, literally different bathrooms, different water fountains, all sorts of money spent to create a society around white supremacy. Yeah. Different schools. I mean, you had to build another school in some ways a lot more than

the reliance interest here, of course. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at

the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com dot com. Use code advisory at checkout to save. Terms and conditions apply. David, I want to talk about two arguments that weren't made. Okay. And I'm confused why they weren't made.

Okay, go for it. And I want to have you tell me why. Okay. Okay, I will try. Okay. Because I don't know what you're going to say, so I'm very interested. They're both about viability. Okay. Now, in some ways, nobody here going to say, so I'm very interested. They're both about viability. Okay.

Now, in some ways, nobody here wanted to talk about viability except the Chief Justice, who's like, so anyway, viability, guys? And everyone's like, uh, John. So first,

I don't understand why here the two advocates, the Solicitor General and the Center for Reproductive Rights, want to keep the viability line. This line is based solely on medical science. Medical science is heading in one direction only. And so at some point, the viability line will be eight weeks, six weeks. I don't know. It could be. At that point, do you really want to say that you can't have an abortion? Is that what they believe?

No, of course they don't. They don't actually believe in the viability line. Why isn't that argument being made? A, and two, also similarly related, I don't understand why the viability line is a line at all, unless we're saying that women can induce labor at the viability line. And therefore, instead of an abortion, we're simply saying that the separateness of the fetus is a reality, not a theory. says that you can induce labor at 24 weeks instead of having an abortion, we in fact make you carry the baby to term. So once again, why is the viability line a thing? It seems like the worst, like to me, I kind of wish we could get rid of the viability line and then get rid of Roe and Casey just so we could have a conversation about, to me, how totally illogical the viability line is for both sides. Because the pro-life side doesn't want women being able to induce labor at 24 weeks.

And the pro-choice side doesn't actually want to have to stand by medical science as it moves the viability line inexorably back. Why were neither of those arguments made, David? inexorably back. Why were neither of those arguments made, David? That's a really good question for which let me, I think, I think here's my best shot at an answer. I think viability is a proxy really for something else, personhood. Yeah. Okay. So there is a sort of, there is a underlying philosophical argument here that is looming over everything. Let's move this from, you know, an originalist inquiry says, oh, and the 14th amendment was the original public meaning here to protect or restrict abortion rights. And most originalists would say, not all, but most originalists would

say 14th Amendment was not passed with abortion rights in mind. This was a racial equality, fundamentally a racial equality constitutional amendment. But there's beyond that original public meaning argument about the 14th Amendment, there is also this looming big question about the status of the unborn child. Is it a person? Is it a person? And this is where Sotomayor was sort of getting at with this very awkward kind of line of questioning where she talks about if somebody's brain dead and you can shock them and they can respond. Yeah, I wasn't sure she was actually making the argument she thought she was making there. No, exactly. And so that's what's underlying a lot of this.

And I think because what you're getting at is something that I think is very important to not the legal analysis, but the way human beings think about abortion generally. And I think the way that human beings think about abortion generally is one thing they feel pretty confident about, that a baby that can live outside the womb is a baby. But a baby that can't live outside the womb, is it a baby or is something else going on? made the argument from the beginning that the science has been more fully established. Wait a minute, wait a minute.

A child is a separate living organism, separate DNA from the mother and father. From minute one, it is a separate living being. It's just more, it moves from more dependent to less dependent on the mother as time goes by. more dependent to less dependent on the mother as time goes by. Whereas there's a counter philosophical argument that says, well, not really, not really. That what's really happening is what you have is more potential life that becomes actual life at an indeterminate moment.

And that indeterminate moment is shaped by your philosophy, sort of shaped by your morality. There have been sort of some arguments made in the past about a concept called quickening, for example. And so I think the viability argument ultimately, and not so many words though, is a proxy for that personhood argument. When, where on the pro-life side, you say,

the baby is a person from moment one. And pro-choice side says, no, the baby is potential life. It's potential life. It's not life. It's potential life. And I think the viability argument is a proxy for that.

It's just sort of my thought on it. Okay. I think that's true, but I was surprised because in some ways they were given many openings to say, yeah, at the viability point, the balance between the two liberty interests simply shifts. Before viability, the liberty interest of the woman outweighs that of the fetus. And after viability, we simply value the liberty interests and the life interests of the fetus more than the woman's liberty interest. But nobody actually said that. Instead, it was like, no, viability is about viability and the separateness of the baby and the baby's ability to live separately from the mother. No, it's not. Or then we would say, ah, you can't have an abortion, but we can get rid of that baby for you. But that's not what it is. And nobody's been advocating for it. I actually think it would be very intellectually consistent to advocate for

that and then put that back on the pro-life community to say, okay, well, actually, we don't want that. Yeah. Well, actually, we don't want that. Speaking on behalf of the pro-life community. David, you think this most likely stays 5-1-3? You think this most likely stays 5-1-3? Okay. Most likely, I will say this. Yes, I will agree. Most likely stays 5-1-3.

Yes. I'm not going to say certainly stays 5-1-3. I'm going to say amongst your bucket of options, the most likely option is the 513. I think we could end up with a concurrence maybe from all nine justices. Sorry, an opinion from all nine justices. Wow. Because I think just look at the issues we've talked about. You're going to have one on stare decisis, one on Plessy, one on how getting rid of the viability line doesn't

practically fix anything and makes the problem worse, not better. Maybe one on your point, David, that making up more law to fix up made up law isn't constitutionally sound and 50 years proves that. Roberts is, no, we really could just get rid of the viability line. And then I think you will have three separate dissents. Justice Breyer, swan song on stare decisis. Justice Kagan, angry on stare decisis. And then Justice Sotomayor on the workability of Roe and the importance of Roe to the expansion of women's rights in this country, to women's participation in the economy, to the history of discrimination against women and using bars on abortion and reproductive issues to further that discrimination.

There will be plenty to write on that, by the way. That's why this is a hard issue. It is a hard issue. It is a hard issue. And anyone who says that it's not is not reasonably engaging with the other side. There are, as Justice Kavanaugh said here, there are two interests here. And he pointed out that the Solicitor General in her brief used the word accommodate, that we've reached an accommodation, use the word accommodate, that we've reached an accommodation, that the existing framework accommodates. That's your word, he says, both the interests of the pregnant woman and the interests of the fetus. And the problem, I think the other side would say, and the reason this issue is hard

is that you can't accommodate both interests. You have to pick. That's the fundamental problem. And one interest has to prevail over the other at any given point in time. And that's why this is so challenging. And I just think that's worth emphasizing because everyone, of course, has the right and does bring their opinion on how this case should come out. Just acknowledge that the other side has some good points, too. has some good points too. You know, and I think that that's one of the things, you know, I think that's one of the things that then would mean that what you would see play out if Roe is, Roe Casey is overturned, is that you would see play out a kind of debate in the real world with consequences

that we haven't had for some time. And speaking as somebody on the pro-life side, there has been a kind of easiness to your pro-life-edness. Oh, yeah. I am looking forward to get on a high horse here for a second. If this case comes out the way we think, all of these states that are going to bar or, you know, in practice, bar abortions, are they then going to pass actual pro-life legislation

along with that? Universal daycare, pre-kindergarten, help for mothers who are struggling so that they can get back into the workforce, support their child. Those are actually pro-life laws. You won the abortion fight. Congrats. Now, what are you going to do with that responsibility? Because now you have a duty. Right.

And so you've always been able to say, I'm against Roe, I'm against Roe, I'm against Roe. And people have been able to pass laws that have been symbolic. And they knew they were symbolic when they passed the law. So it was an easy vote. It was the right-wing equivalent of virtue signaling, right? But there's also been a hidden reality behind the politics. And the hidden reality has been on the ground pro-life efforts often struggle for funding they often struggle for volunteers the kinds of things that in

the post-row world where people were actually getting engaged in young mothers lives a lot of great work was being done but the interest and focus on that was always much less than a lot of the the bigger political interest and focus and all that's going to would have to switch and turn flip upside down and it should have been kind of upside flipped already um you know when i was when i wrote this uh piece some time ago about how there are ways you can be pro-life even when there's a pro-choice president. And one of the things I pointed out was child allowances. research that child allowances, like the child allowances proposed by Mitt Romney, the child allowances that are part of the Biden plan, that these things save lives because it's a documented fact that economic insecurity leads to abortion, that economic insecurity

is a factor in abortion decisions. And so you're right, Sarah. What are you going to do concretely, concretely to be pro-life and to support struggling moms? And that's going to be a huge flip around challenge to the pro-life movement. And I would like to think it's up for it. I would like to think it's up for it,

but there's a strain of commentary while everyone's focused on Roe, Casey right now. There are some other pieces that have been sort of floating out there that have said, are you up for the challenge? Are you up for the challenge now that it's not a symbolic vote anymore, now that you can do it and just sort of say, I stood for life and then do nothing more? Are you up for it?

And look, time will tell, but that's going to be a profound moral question that is asked right back to the pro-life movement. Because reversing Roe-Casey doesn't end the debate. It doesn't mean that abortion is banned in the United States at all. It is, in many ways, the start of a different kind of debate that is much more consequential to people's lives. I have a lot of beefs with the pro-life movement, but let me tell you one that synthesizes all of my beefs with the pro-life movement. Okay. Plan B is over the counter. Plan A isn't. Cory Gardner, Republican senator from Colorado,

tried to propose over-the-counter birth control. Nope. Nobody was that interested in it. Tell me how you are pro-life, how you want to limit abortions, but continue to make birth control harder to access and more expensive. No. No, no, no, no, no, no, no, no, no, no, no. Now that's different than the legal thoughts that I have on Roe and Casey. It's different than how I think this case should come out. But the pro-life movement, as you've correctly said, is not actually about Roe and Casey,

or at least it says it's not. It's about life. So there, I got beef. So me, Mr.ant pro-life um has zilch problem with with birth control no problem with birth control and i agree with you i agree with you it would be interesting to have a catholic pro-life guest on to uh to to respond to that fine be mad about people taking it try to convince them not to. But making it prescription

only is in direct conflict with your pro-life beliefs. You're making unwanted and unplanned pregnancies far more likely. One last note from the transcript by the way that was interesting was there was a lot of discussion on how women

between 15 and 24 weeks who are most likely to need abortions are those who are young. It's their first pregnancy and they don't know that they're pregnant or that they are lower income. They took a time to put together the funds to do this. There was some talk on how contraception was maybe a change since Casey, that it's more available now, that it's cheaper now, that health insurance is universal. The other side pointed out that in fact, 18% of women in Mississippi are not insured and that therefore birth control is quite expensive for those women, which by the way, I agree. You have to get the doctor's appointment in the first place and then it's the prescription cost. Scott Stewart did have an interesting answer to that.

The lowest cost abortion at Jackson Women's Health is $600 for the abortion, additional costs, and further fees. And according to my friends, the respondents and their amici, there are also additional costs related to travel, taking time off work, accommodations, all of these sorts of things. Whether somebody is uninsured or not, the costs of contraception are consistently and significantly less than those. I mean, yeah, except the whole point is you don't think you're going to have an unwanted pregnancy. And so you're rolling the dice on those earlier costs. And then when you're actually faced with it, you're like, well, I got to find $600. So it's not quite one-to-one. But, David, there were other arguments this week. We will talk about them at some point.

Look, there was a really, there's one that could overturn Chevron. I know that's gotten less sexy in part because Chevron's kind of been overtaken by events. But you and I need to have a Chevron conversation. And there was the case about religious use for school funds provided by the state. A follow on to that Montana case that we talked about, the playground case. So plenty, plenty of other cases. They just weren't Dobbs. Yeah, no, they were not Dobbs. So as we've we're about it an hour ish, but I did want to ask a question.

This point was made. We talked about it in the green room and I thought you had a really you had a good answer for it. arguments and activism in electoral politics over the life issue is that while there's polling that indicates a lot of parity between the pro-life and the pro-choice side, sort of in raw numbers, the actual on-the-ground reality is that there are more pro-lifers who vote with that as the number one issue. There's more pro-life single-issue voters than there are pro-choice single-issue voters. And on the Bulwark podcast, Charlie Sykes had on a guest that said, well, wait a minute, that makes a lot of sense because the losing side is usually more motivated. And that if the dynamic flips and the pro-row side becomes the losing side, you may very well see a flip in that dynamic with more single-issue voters becoming pro-choice voters,

or more pro-choice voters becoming single-issue voters. And you had a response to that in our green room, and I thought that the listeners might like to hear it. Oh, the answer is we can't know. That's a really good theoretical reason why more pro-choice voters may become single issue, and there's no data to support it whatsoever. So for instance, the only major pro-life decision is the partial birth abortion ban being upheld in the early aughts. There was no particular backlash to that. And so that would be evidence that no, in fact, it is very hard to turn pro-choice voters into

single issue voters. And that's your proof. But on the other hand, not that many people are for partial birth abortion or really wanted to die on the hill of these late term abortions. And so it's possible it's that everyone's like, well, fair enough. It's a loss, but it's just not an important one compared to overturning Roe v. Wade. And David, as you've pointed out many times, there hasn't been really the kind of backlash to the Texas SBA bounty hunting abortion law that you would have expected if that thesis were correct. Now, that's not to say it's not correct. There's just no data to support it. There's sort of logic to support it. But I would actually need to see any example.

It is not uncommon for one side to have an issue that motivates its people that the other doesn't. And for what it's worth, of course, we're not talking about an enormous number of people who are actually single issue pro-life voters. It's just that 3% is enough to sway a lot of elections. It's also more than on the other side. I mean, a perfect illustration of that is the best available data we have says the Virginia election, only a very small percentage, 8% of voters put abortion number one. And of that 8%, 59% were pro-life. So what's 59% of 8%? I mean, that's not very many. Five, yeah. Yeah, around 5%'re putting it number one and

we're pro-life. But when you're talking about a one to two point gap in an election, that can make a real difference. So yeah, it's going to be very interesting. And just speaking from the standpoint of underlying political realities as of right now, as of this moment, and a lot can change, a lot can change. The Democrats are set up to get pretty walloped, at least in the House, in the midterms. It'll be interesting to see whether they think this is the issue they want to rally around to turn the tide on that. I think it would be a mistake. I think McAuliffe tried that in Virginia at a time when the economy was just way more on the vast majority of people's minds. Reproductive rights is a luxury you have in the 90s, maybe the early aughts, pre-2008, post-2008. On the left, at least, those culture issues are just not as resonant. right right at least not so far so we shall see so sarah can i give our listeners a wildly ambitious stretch goal okay all right so we challenged our listeners are we going to kidnap

jonah yeah no no no this is much easier, much easier than actual kidnapping. To demonstrate that the USS Advisory Opinions is the flagship, we asked that our listeners rate, get us to 2,000 ratings before the Dispatch podcast got to 2,000 ratings. And you did it instantly. By the next podcast, we had passed the dispatch. And then somebody pointed out, some impertinent person pointed out that, wait a minute, the Remnant has 5,400 ratings and we only have 2,000 on Apple Podcasts. And a fraction of our listeners could put us way over the top on that. Now, in our defense, the Remnant's been going on, which is a wonderful, a mighty battleship of a podcast. It's been going on much longer than Advisory Opinions. It's a legacy podcast that came on to The Dispatch.

But I think our listeners can put us over the top, not immediately, but over time. So there's your stretch goal, listeners. Please go to Apple Podcasts. Let us pass The Remnant in ratings it's a stretch we can do that so easily do you know what a small percentage of our listeners it would take to do this so small just our dedicated ao listeners who aren't doing it

in the car basically if you're not in the car right now go do that right now yes if you are in the car please continue driving safely exactly perfect perfect. If you are in the car, please continue driving safely. Exactly. Perfect. Perfect. Just the people not in the car should put us over the top. Exactly. Right this instant.

Yeah. So thank you guys for that in advance for, um, taking us past the remnant. I'm just going to go ahead and assume that's going to happen. I'm just going to assume. Yeah. Thank you.

But go rate us on Apple podcast. Please subscribe. And we're going to be back on Monday with more Supreme Court and probably more Dobbs thoughts. I'm pretty sure we might have another Dobbs thought or two. But thank you, as always, for listening. And we'll talk to you on Monday. When you're working out at Planet Fitness, it's a judgment-free zone, so you can really step up your workout. That's why we've got treadmills.

And our team members are here to help, so you can be carefree with the free weights. There are also balance balls, bikes, cables, kettlebells, and TRX equipment. But, like, no pressure. Get started at Planet Fitness today for $1 down and then only $15 a month. Hurry, this great offer ends April 12th. $49 annual fee applies. See Home Club for details.