Advisory Opinions - Supreme Court Hears Texas Abortion Law Arguments

Episode Date: November 2, 2021

On today’s episode, David and Sarah react to the oral arguments in the Texas abortion law cases. The Supreme Court heard three hours of arguments in two different cases and from four different advocates. But after all of it, Sarah and David agree: it’s a mess…and it still doesn’t have anything to do with Roe v. Wade. They also discuss the latest grants, denials, and opinions coming down from the Court. 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. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. Lots of Supreme Court developments. Sarah, take it away. Okay. First of all, perhaps the most important Supreme Court development, our Halloween costumes this year in our house were particularly noteworthy, I think,

to AO listeners. I dressed in all red. Scott dressed in all blue. That's right. We were Supreme Court briefs in the case of U.S. versus nap times and diaper changes. And we dressed the brisket up as Noel Francisco, the former solicitor general, basically because Noel is a big fan of wearing those like collared sweatery things. And I happened to be able to find one of those and I couldn't find a morning suit for a baby and I was not going to go bespoke. So, um, yeah, it was, uh, I really enjoyed it. Now, of course you have to know that Supreme court briefs are color coded. There's in fact, there's very strict rules on the color that the top of your brief has to be. So we were a petitioner and respondent. So I have a, just a mild bone to pick with you here, Sarah. So I'm really fascinated by the costume. It's a great costume. I applaud the creativity, but we have a very short amount of

time. And just moments before you launched into your costume soliloquy, you were like, got to go, got to go, got to go. Let's go, let's go, let's go. That's right. And it was to start the costume conversation. Yes, I think that's really important news that I needed to share with people. Look, here's some less important news. The qualified immunity case that we talked about last week that was up in conference. This was the question of a guy who was taping police officers. The police then tried to confiscate his recording. They had been told by their police department that they couldn't do that. They did it anyway. Do you need a judicially clearly established constitutional right? The Supreme Court said, we don't care, and they denied cert. They also denied cert in a case I was very interested in. This is the Ohio Commission of Elections that says they will have three Republican members, three Democratic members, and then those guys will all pick one additional member to have seven total.

The Libertarian Party sued and said this two-party system is not right, and the Supreme Court doesn't care. Nope, it was gone. Court doesn't care. Nope, it was gone. Now, a case that I thought you might be interested in is that they GVR'd the Roman Catholic Diocese of Albany versus Amami. This was the case about New York's regulation mandating that employer health insurance plans cover abortions. plans cover abortions. And they granted, vacated, and remanded in light of Fulton. That was the adoption case out of Philadelphia. Just initial thoughts on that getting sent back down? I think that's a point in favor of the strong view of the Fulton case as opposed to the weak view of the Fulton case. And for those who don't remember, Fulton was a 9-0 decision, ostensibly on pretty narrow grounds. It did not overrule employment Division B Smith. I mean, when you're talking about a religious liberty case, it gets Sonia

Sotomayor on board. You're generally talking about a pretty narrow decision. But there were two schools of thought about this case. One was super narrow, confined to facts, not really all that valuable. And then the other one was, no, no, no, no, no, no. In actuality, what the case was essentially saying is that employment divisions v. Smith, and this is the religious liberty case that I hate, that Scalia drafted, that really gutted the free exercise clause in some pretty substantial ways, that no, the new reading of Employment Division v. Smith essentially makes the case so weak that you're kind of backdoor restoring older, more robust notions of religious liberty. So that's sort of the strong view of Fulton.

And GVRing this case, I think, bolsters the strong view. What do you think, Sarah? Do you think the Third Circuit will eat their Wheaties, pump some iron? Because right by GVRing it, what happens is the Supreme Court sends it back down to the Third Circuit to reconsider their opinion. Now, it comes with the sort of strong implication that you got it wrong. Try again. But as we've seen in the past, circuit courts don't always take that implication to heart. Correct. Yeah. You know, my view is at this point, if the circuit does not rule, if the circuit does not strike down the provision, we'll see a cert grant and we'll see another pretty strong, although not reversing Employment Division v. Smith, religious liberty ruling. I mean, I think at this point, it's pretty

clear that the court is on substantive religious liberty cases is by and large of the opinion that the employment division v smith is to be read very narrowly it is now it used to be read as if you're going to have to show me quite specifically that this provision of the law is directly targeting religion to prevail under Employment Division v. Smith. Now it's much more like, you're going to have to show me that this neutral law of general applicability is neutral and generally applicable in every possible respect, in every possible respect before we're going to uphold it under Employment Division v. Smith. So that's a lot of like in-the-weeds nerdery, but the short version of this is

the religious liberty jurisprudence of the court is just getting more robust, and this is further evidence of that. All right, we had three statements and or dissents on denial of cert. One was a death penalty case involving mental capacity, basically, when someone does not have the IQ, for instance, to be put to death. One was on a pro se litigant pleading

and whether you could find that they hadn't pled it well enough, even though pro se means that you are representing yourself. This most often happens in criminal cases, the courthouse lawyer, so to speak. And then the last one was FISA. Interestingly, the ACLU sued to be able to see FISA court opinions.

And Justice Gorsuch was like, yeah, actually, that feels like maybe we should talk about that since they are shielded from all oversight whatsoever. But the court didn't take it. Now, major cert grant, of course, is the EPA case, the Clean Power Plant case. So we will be hearing argument in that at some point, probably January at this point. So we can talk more about that some other time.

We'll get plenty of attention on Clean Power Plant. But then the last one I want to talk about was this Maine emergency docket case. So Maine passed a state law that said that health care workers in Maine had to get the vaccine and there were no exemptions for religion, religious belief. religion, religious belief. And, um, justices Gorsuch, Thomas, and Alito dissented. The Supreme court did not stay the law, uh, being in effect. Um, so we had basically a six, three court on that one, though, of course, in theory, you could actually have five, four, because it's just possible someone didn't want to join this opinion on the dissent. But in this case, particularly unlikely because we have Justice

Barrett and Kavanaugh writing a concurring in the denial of application for injunctive relief. And super interesting because basically they're totally talking past each other in some way. And super interesting because basically they're totally talking past each other in some way. Justices Gorsuch, Thomas, and Alito saying why this law violates the Constitution and should be granted. And Justice Barrett and Kavanaugh giving one paragraph, which I think will ring in shadow docket history for a little while. And you have to remember, right, you have these emergency docket cases that just, the hits kept on coming this summer. The criticism of the shadow docket jurisprudence piled up, a lack of transparency, a lack of consistency. What is the basis on which some of these are good and granted and some of them aren't? And then, of course, it all culminates

in the SB8 application that goes up to the court, which we're about to talk about a lot. And so this is now almost like the denouement of the emergency docket jurisprudence. And what Barrett and Kavanaugh say is that when this court is asked to create extraordinary relief, it considers, among other things, now it's a four-part test, they only mention one part here, is the applicant likely to succeed on the merits? And here's the money sentence. I understand this factor to encompass not only an assessment of the underlying merits, you know what the sentence means and says, but also a discretionary judgment about whether the court should grant review in this case. Otherwise, you would basically get like a freebie through the emergency docket to get the court's view on the merits. And therefore, this discretionary consideration counsels against a grant of extraordinaryief in this case, meaning, by the way, I wouldn't vote to grant

cert in this case, so I'm not going to stay the law from going into effect. Yep. That's going to be the new emergency docket policy, is it now? Okay, maybe. I think it's solid, Sarah. I actually do think it's solid, Sarah. I actually do think it's solid. I just wish, you know, we eventually need to get these on YouTube because you're totally missing the expressiveness of Sarah.

I get such immediate feedback on my points. You have no idea. There was, was that the, gosh, what was the gymnast who finished with silver in the vault? Michaela. Michaela Maroney. You gave me the Michaela Maroney face. I did a little, yeah. You did a little.

But I think it's a fair standard to say, wait, whoa, whoa, whoa, whoa. We don't hear everything. We don't hear everything. And the fact that it's rocketing up to us does not give you the right for us to hear this on demerits. It doesn't. And so I do think that is an interesting twist to this, but, and maybe this will take the Michaela Maroney off your face, it's further evidence of one of your core theories, Sarah, the 3-3-3. of one of your core theories, Sarah, the 3-3-3. So here you have, this strikes me as a kind of institutionalist sort of decision. Oh, super institutionalist. Yeah. Like it now is in the top five most institutionalist decisions in my view. Yeah. Quite institutionalist. Sort of saying,

I think the combination of granting oral argument in Texas SB8 at our urging and this decision is saying, okay, okay, everyone's had a lot of emergency docket fun, but we need to get back to regular order and we need to get back to regular order sooner rather than later, or something that looks more like regular order. I think that's true. I just don't think it does what they think it does. I don't think that will create the consistency or transparency because in each one of these, there's been a different reason why to take it or not take it.

If there were two in a row, I might be more willing to grant you that point. But, you know, that is the likelihood to prevail on the merits is but one part of injunctive relief factor. You know, there's the likelihood that denying relief would lead to irreparable injury. That's one. How about whether granting relief would harm the public interest?

Like, as in, I understand the point. They're basically just adding a fifth one, whether I vote to grant cert in this case. Fine. I'm all for that being a factor. But it doesn't get around the fact that even if you would not vote to grant cert, you need four votes to grant cert, but you need five votes to give emergency relief. So it's just all kind of messy. I don't think this solves the problem. No, I'm not saying it solves the problem. But I think there is a message of kind of slow your roll going out there. But I also think, Sarah... No one's slowing their roll. No one's going to slow their roll based on this.

I know. I know. I know. But you might... Let me finish. All right. So here we go. The idea...

So we've been going through pandemic law. And pandemic law has led to an awful lot of these emergency docket cases around religious liberty issues, for example. I mean, we've had a bunch of them. We've had a bunch of them. And we're now seeing a bunch of cases going up on the vaccine mandate issue. So I think there's sort of two things going on here. One is the slow your roll message. And then here's the one I want to see if I'm going to get the Michaela Maroney face on. I think, I think Barrett and Kavanaugh may think a vaccine mandate is going to even pass strict scrutiny. And that might be part of what's going on here.

So I got the intrigued nodding. might be part of what's going on here. So I got the intrigued nodding. You did get intrigued nodding because I 100% agree with you and said that to Scott last night. So to explain, Gorsuch, Alito, and Thomas are saying this doesn't pass strict scrutiny because it's basically a balancing test, right guys? So you have the religious interest of the individuals pitted against the state interest. What is that? To Gorsuch, Thomas, and Alito, they're saying that basically the court did some heavy lifting for the state and rephrased the state's interest in a more compelling way, in a broader way

that basically, you know, the state has interest to protect public health of people. Well, great. Their point is like, no, that's not the interest. It's much narrower in this case to, you know, force people with a religious objection to get the vaccine because those people in particular would pose some kind of additional risk. And I think what you can absolutely read into it as you just said david is that barrett and cavanaugh in fact don't agree with that which is why they would not vote to take cert which is why they're saying you don't have a fourth vote for this case let alone a fifth vote to get emergency relief right this this was it felt it had a had it gave off a whiff.

You know how you can kind of get that smell in the air. It gave off a whiff of you'd lose on the merits. Yeah, yeah. That's how that's how I interpreted it. Because basically what presumably Barrett and Kavanaugh would think about the state's interest is a broader interest. It's not simply the state's interest in vaccinating people with a religious objection, but something bigger, broader. And as we talked about during the pandemic many times, the state's police power is quite large in this area, maybe at its at its largest in an area like this. Yeah. Yeah. Vaccinating against deadly infectious diseases is near apex police power. Yeah, vaccinating against deadly infectious diseases is near apex police power.

Okay, but that's not why any of you came here. Thank you for eating your vegetables. Look, Brussels sprouts are delicious. But let's move on to the entree. It's a nice braised beef that's been sitting in the oven a long time. Okay, I just want to go over some facts before we jump in, David. One, there were two cases being argued today. Whole Women's Health v. Jackson. That is the abortion provider groups suing Texas.

Second, we had the U.S. versus Texas. That's the Justice Department suing the state of Texas. And so arguing those, we had first the guy from the Center for Reproductive Rights, Mark Herron, was the first at the podium. Second, we had Judd Stone, the Solicitor General for the state of Texas. Then we heard from Elizabeth Prelogar, the newly minted, confirmed Solicitor General for the United States. This is by no means her first argument in front of the court, but it is her first argument in front of the court as the Solicitor General. So that was exciting and congrats to Elizabeth. She is

just one of the best oral advocates in the history of the world as best I can tell. I saw her in the Ames court competition back in law school, David. Wow. Yeah. I mean, she's been that good like forever. And then you had Judd Stone argue again as Solicitor General for the state of Texas against the SG. And then they gave Jonathan Mitchell, the former Texas Solicitor General and the guy who wrote the law review article that we spoke about

that kind of came up with this concept in the first place. They gave him divided argument time, actually, in that case. So we heard from lots of people and it lasted for three hours, almost on the dot. All right, David, high-level takeaways, in the weeds takeaways. What do you think? So high-level takeaway, this is absolutely why you do just a preliminary high-level takeaway. This is absolutely why you do emergency docket oral argument.

This is why. Because you really got to see them hash this thing out in real time. And it was fascinating to listen to it. The other high-level takeaway is what a mess. What a mess. What a mess. Because we've said this before, essentially what Texas did is it hacked our political system. It hacked the judicial system. We talk, you know, during the age of Trump, what we do is we talk a lot about sort of, there was a lot of discussion about norms and guardrails and habits and practices and traditions and all of those things.

And a lot of people, they even begun to make fun of that sort of conversation. My norms, oh, norms this, norms that. Well, there's kind of a normal way in which you practice law when crafting and challenging laws in the era of judicial review, which is most of the constitutional history of the United States of America. And pre-enforcement judicial review has become commonplace. And so what they essentially did was try to engineer a way to not just prevent pre-enforcement judicial review, and this is what I thought the Whole Women's Health Advocate was actually pretty good about, the Whole Women's Health Advocate was actually pretty good about was also making the entire system kind of fundamentally chaotic. Because what you could do, any person can sue, they could sue multiple times over the same incident without demonstrating any kind of level of personal injury. It was really a remarkable demonstration

of how thoroughly the system had been hacked. And then hearing the court trying to apply precedent to a law that didn't have a lot of precedent behind it, everyone is straining and struggling to fit this into a box when it seemed to me it was literally designed from the ground up to not be in the box. That was kind of my high level assessment of it. All right, let me add some additional high levels from me. One, very interesting that very few people wanted to make this about abortion, justices or advocates. In fact, I would say that guns came up. Technically, if you just did like a word search, I think there's a really

good chance that guns came up more than abortion. This for everyone presents a sort of scary parade of horribles on both sides. And so that's my second high level point. The reason that this has kind of hacked the system is because no matter which side you go with, the precedent of it is a little terrifying. So I think the precedent on the one side is sort of obviously terrifying if you just let this fly. The chilling effect, as they talked about it, is not the actual penalty. It's not the $10,000 penalty. It's the flood of lawsuits coming in is chilling the constitutionally protected activity. And so you can't just wait until the end of the lawsuit when the chilling, the constitutional violation, in their opinion, is the chilling effect. And the chilling effect happens at the threat of the litigation itself. Interesting. But at the same time, a much more complicated

parade of horribles is how they allow for pre-enforcement review in this case without it basically also ending state law. So, yes. To put a finer point on it. Three, you know, I think you could read into some of the justices in terms of their level of crankiness. Justice Gorsuch, by the way, taking today's award for crankiest justice on the court. Spicier than Alito? Oh, it wasn't spicy. It was cranky.

Very cranky. But, you know, even Kagan at various points is like, but wait, how what's your limiting principle on this? If you can sue the clerks who only have a ministerial role, as we mentioned, right, you can file a dead cat. You know, it just got so messy. thought it was very interesting in the first case where he said that he believes that there is a constitutional right to pre-enforcement review of any constitutional harm under 1983, that it's an implied right created by Congress. That turned into another big discussion between the Texas Solicitor General Judd Stone and all of the other advocates, in which really Jonathan Mitchell and Judd Stone were like, Congress could fix this tomorrow. But of course, David, this is a point that you and I have made over and over again. The reason that courts keep putting put in this place is that they know that

Congress won't, can't, isn't gonna- Exactly. To fix anything. And so it keeps falling to the courts to do something. And I think this is the best example of just how serious that can get. Because yes, if the Congress were functioning, they could fix this tomorrow. And then we wouldn't have this hand wringing over what to do. But an implied right to pre-enforcement review under 1983? Okay. Yeah. Yeah. Because the interesting thing about this case is what you could see in real time is, and this is, I think, a really helpful thing to sort of explain to listeners who are not lawyers, who are not litigators, which is a ton of our listeners. Not only is

there an outcome of a case, there is a rule, there is a law that is then precedent that is generated by that case. And so what you could see in a piece of litigation is not just you win, you lose. It is you win, you lose, and here's why. And here's why. And that is where you could in real time see the justices really straining with the here's why, because they know the instant they announce the why, it applies beyond this case. They couldn't just say, Texas, you've done something nobody else has ever done. So here we're going to issue a rule that applies to cases where nobody's ever done this before. And because everyone knows that what Texas has done is going to be a model. This is going to be the kind of

thing that other state legislatures will try. So there has to be a rule. And what the heck is the rule? And they tried some out. One they tried out was the chilling effect. And the justices were like, well, it can't be the chilling effect because every law, every tort law has some sort of chilling effect. You're trying to prevent torts, right? Of course, at one point, Justice Alito asked about severability, this idea that the law isn't unconstitutional in all of its applications. So should we just sever the parts of the law that are unconstitutional? And this is where he did get quite spicy. And he said, but I guess an abortion, it doesn't count because they have ruled in previous abortion cases that they are not going to look at

severability in abortion cases, abortion distortion at work. Here was the rule that the Solicitor General of the United States tried to offer. Congress intended a forum under 1983, and Texas purposefully got around it and is showing an open hostility to federal rights. The problem with that is that now you're going to do these purpose-based tests on the reason why a state passes a law and an open hostility to a federal right, as one justice mentioned. Okay, but imagine, this was Justice Kavanaugh's question, does the clarity of the constitutional right then matter? And she said, no. Imagine pre-Heller, she would apply this before Heller decided there was an individual right to bear arms because a state in that case was clearly openly hostile to the possibility of a constitutional right to bear arms. Messy, messy, messy. Incredibly messy. messy incredibly messy incredibly messy i mean it's the kind of you know and some of the hypos were were interesting i mean you know one of the hypos

what if a class of americans are told they can't vote and then but the state's not enforcing that. You can just sue people who try to vote. Shouldn't there be pre-enforcement review of that one? Or does somebody have to vote and be subject to 23 lawsuits in 23 separate counties? I mean, this was really interesting to me. One thing that I thought that the whole women's health advocate did well, which was to draw out sort of like how sweeping this is, that this one act can draw, say, 17 different lawsuits in 17 counties. And, you know, so one abortion creates 17 lawsuits in 17 counties, or it could create 40 lawsuits in 40 counties or 80 lawsuits in 30. I mean, it's just limitless. And so then the question gets into, well, what about standing? What about standing? Is there some sort of constitutional

principle around standing? Because one of the issues, one of the questions that was raised was in defamation law. Well, there's state defamation law, right? Doesn't that have a chilling effect? But there isn't any state defamation law that I'm aware of that allows me to sue if I see that somebody on Twitter defames you, Sarah. I don't have a freestanding right to sue on behalf of your free speech rights. So again, you're just getting back to this unprecedented nature of this law. On the flip side, I thought that the Texas Solicitor General Judd Stone did a very nice job of explaining why every idea that the other side has as to how you could make this work in an opinion doesn't actually work. So for instance,

the obvious problem, who are you enjoining? The judges? Okay, well, as Justice Alito pointed out at one point, there is nothing that prevents this from being in federal court as well. So imagine that someone from out of state sues under SBA. That could then have federal diversity jurisdiction. You could sue in federal court. So then does this injunction, like is one federal judge enjoining another federal judge from even being able to hear adjudicate a lawful case? Where's the unlawful action that the judge has taken, be them state or federal? We just don't enjoy federal judges from doing their job of lawful hearing cases. And then there was the problem, of course, with the DOJ action only. A problem,

by the way, that one listener very helpfully pointed out that in the last time that we talked about this, David, I intentionally skipped because I thought it was going to be too hard to explain the problem. But I'm going to try here. So we talked about standing that they have standing because a BOP could be injured by this, but we didn't talk about the cause of action. Why does the department of justice get to sue the state of Texas? Interestingly, having an injury is not enough. You need also a cause of action. What are you suing under? The U.S. does not have a constitutional right to anything, so they're not suing under the Constitution. And there's no statute by Congress that says the U.S. has a right to sue the state of Texas when they are mean. And so it's a huge problem

with the U.S. case. I hope I've explained that fairly well. This whole thing, by the way, this was not the first Supreme Court case to listen to, and they were airing it live on cable. And I was like, no, not this. This is like beyond 3L Fed Court stuff. And it was really, really dense. But anyway, the answer that the U.S. Solicitor General gave was equity, that the U.S. just gets to sue under equity. Equity, by the way, in case you're curious, is just a word that has no meaning, really, just means because we can. As this chief justice pointed out, he said that is limitless and ill-defined. If the U.S. can sue here, there is no limit to it. Huge problem. And another thing she had to address was,

okay, if we find a way in the first case to rule for them, to rule for whole women's health, can we get rid of your case, the U.S. case? That took up a lot of the argument over. She was like, no, we would still have the ability to have filed the case in the first place because the injury occurred at the point that Texas passed a law that was openly hostile to the supremacy of the United States. And then it was like, well, you know, Barrett, does this end it, though, even if you could have filed it in the first place? And she basically says no, because depending on the remedy that you fashion in whole women's health, Texas could just get around it somehow. So our case still needs to stick. needs to stick. Woof. That makes it even harder because I think there was maybe a way to fashion a whole women's health outcome where they just said like, sorry, this doesn't have any precedential value. It applies here and here only. The justices were very, very hesitant on that

front, particularly the ones you can guess that we don't make cases like that. At one point they asked whether that would be an advisory opinion. This is where Gorsuch got really cranky, by the way, is the advisory opinion idea. He said, if you're just enjoining these unnamed plaintiffs, as in you're enjoining not everyone in the country, but in fact, the second someone files a lawsuit, they are poof. They're enjoined, right. All of a sudden enjoined. And he said, OK, could when they file that, can we hold them in criminal contempt? And she says, no, because they wouldn't have notice. And he says, well, now wait a second. Once we have an injunction,

that's usually the notice to plaintiffs. Can you think of any other example where we issue an injunction, but can't hold someone in criminal contempt for violating it? And the answer was no. And he says, then why isn't this an advisory opinion if we have no contempt power to enforce our injunction because it's over hypothetical plaintiffs? So, Sarah, let me stand in for the non-constitutional lawyer audience right now. What are you people saying? I know, I know. This is like, and you know what? Normally, I think the justices and the advocates, you can tell when they fully grasp all the problems in a case because it's very easy to understand what they're

talking about. The fact that this case was so dense and so difficult to follow the arguments, to me, is like that Einstein quote, that if you can't explain it to a six-year-old, you don't understand it well enough yourself. I don't think any of us, I don't think any of the nine of them, any of the four advocates we heard from, or the two of us understand the parade of horribles on that other side, on the injunction side, well enough to be able to explain it to a six-year-old. And I think what kept coming up in my mind as I was listening to all this was the civil rights era. Okay, in the civil rights era,

the pre-civil, before the Civil Rights Act, before Section 1983, before there were times when state law in the United States of America was flat out broken. Okay. So if you were a white person, you could murder a black American with impunity and you were going to be acquitted by a jury. And, you know, you had constitutional double jeopardy law. So how could somebody be, you, so how could somebody be tried twice for the same crime? And what was ending up happening is you were having incredible, large-scale deprivation of liberty

that was being sanctioned and permitted by state law. And so during the Civil Rights Era, essentially what happened is a lot of civil rights enforcement and a lot of enforcement of just sort of the fundamental privileges or immunities of being an American, that Congress just swept in and took all that. And they said, okay, there's going to be federal, if you could be acquitted, if an agent of the state violates the rights of a, you know, of a black American in the South and a state jury acquits them, we're going to have a way to bring federal charges for violation of civil rights laws. And we're going to be able to prosecute you criminally, even though you've been acquitted in state law under a different legal claim, we're going to prosecute you for civil rights laws. We're going to pass civil rights acts that override the freedom of association rights of these racist

restaurant owners. And you're going to say, you're going to have to serve people. So essentially what happened is Congress swept in, saw that sort of the American constitutional system was broken at the state law level and said, we're taking over this. You can't do this anymore. Well, here what you have is, as you accurately said, Sarah, there is no real chance of Congress swooping in here in any real way, shape, or form. And so what's happened here is we have this issue of abortion that is hovering in somewhat of a state of limbo because of the Dobbs case. Because we haven't talked about that, it's still in a state of limbo because of the Dobbs case. And then this mechanism for denying the exercise of this right that is currently

recognized under judicial precedent, even though I disagree with that strongly, but it is, judicial precedent, even though I disagree with that strongly, but it is, and a way to engineer temporary deprivation of rights almost ad infinitum if you have a solidly red or a solidly blue state enacting a series of laws, and with Congress immobile and constitutional liberties in a, again, I don't agree that abortion should be a constitutional right, but it is currently recognized as one, constitutional liberties in a state of suspended animation, and nobody knows what to do at all. I hesitate to ask because I don't actually know. I hesitate to ask, but how do you think this is coming out? I don't think there's much question that the law will be enjoined.

I do not think they will enjoin judges. Right. I think that this could be a 6-3 enjoining potential plaintiffs and Justice Gorsuch, Alito, and Thomas write a very angry thing about Justice Gorsuch's point that it's an advisory opinion, that you can't hold them in contempt,

so what are we doing here? There's no such thing as potential plaintiff injunction. And they will have a parade of horribles of what all can happen when you have a potential plaintiff injunction. That'll be will have a parade of horribles of what all can happen when you have a potential plaintiff injunction. That'll be on the whole women's health case on the, uh, DOJ case. I think they could have six, three, the other direction. Interesting. I, I think that is amongst the realm amongst the potential outcomes. Yeah is it is the most i'm sure of any of that

just that like after listening it's sort of where i think things are most likely i feel like there's three to four to five potential outcomes and not one of them is more than 30 probable at this point and i've never listened to an oral argument and come away that uncertain. Like I never have, have I listened and come away that uncertain. Do you think there's a 30% chance that there is no injunction and that this stands? Oh, I definitely think, I think that, I think that your outcome and no injunction are about equally likely. Wow. Okay. About equally likely. Now, I don't know. It was interesting. I just have to mention this before I talk about Justice

Barrett, but she had my favorite line in the whole oral argument where she asks a question. I even forget what the question was. And so the answer starts and she just cuts him off and says, assume I don't buy that. Yes, it was on the constitutionally implied right in 1983 for pre-enforcement review, I believe. Exactly. And she says, assume no. Where else is your right coming from here? Justice Breyer also had a nice laugh line. He was talking, to your point, about civil rights era, Arkansas, school segregation. And the Solicitor General of Texas said, well, I think Congress did have a law there. And he says, well, they maybe didn't, but we don't need to argue about that. Because if I'm wrong, then I'll just assume it out of the hypothetical.

And that got a big laugh because, of course, he would. So, you know, it was interesting, again, just to go super high level. You had four advocates and nine justices, all of whom I think were really working to find the right legal answer. And there is something actually helpful in the fact that this case is not really about abortion at all because it didn't have the abortion distortion that some of these other cases had. Because we're talking about guns, as they brought up many times. We're talking about guns. We're talking about speech. We're talking about religion, all sorts of other things. Every justice seemed to understand that. And the advocates seemed to, which is why I think you saw some more of those laugh lines, like when the Texas Solicitor General got up the second time,

he said, long time no see. Because there can be joy in difficult legal questions. can be joy in difficult legal questions. Yes, yes, there can be. Although, you know, I have to say, I have to say, Sarah, this case alarms me. It really does because it's hitting on everything that we're dysfunctional about right now. So you take an extraordinarily hot button issue where most people are unable to separate their view on the substantive outcome, should abortion end or should abortion rights end or should abortion rights continue? You drop that into a completely hyper-polarized political environment with a dysfunctional Congress, and it's replicable at scale across the country. And you immediately begin to realize the tit for tat that you get to get into. You begin to immediately realize the inadequacy of the federal government at the

present time to address this. And you, shocking, and what's kind of not so much shocking in theory, but kind of in reality when you encounter it, the struggle of the court to grasp it under existing rules. And you realize this is perilous stuff. I mean, this is perilous stuff. kind of thing that you replicate this at scale and you start to create de facto nullification of federal constitutional rights, de facto nullification of statutes, de facto nullification of the supremacy clause. I mean, these are things that are fundamental to kind of binding this nation together as a united people with a common social compact centered around our constitutional rights. I mean, not to get too alarmist about it, but... But this is the end of our country. But these are the end of days. No, I mean, but these are important issues.

I think I agree. So to me, the two cases present totally different terrifies to me. That's a now and now that I'm using the terrifies. So on whole women's health, I really think it's actually a very narrow question of who you enjoin. I am not particularly terrified of who they come out with on who you enjoin because I think the answer is the potential plaintiffs. I don't love the clerk thing because I think that ministerial function, I just, for very in the weeds reasons, don't like that. But it's all a legal fiction to begin with, so I just can't get that worked up on which legal fiction they decide on. The DOJ case, however, gives me the terrifies because there are so many things, um, if they rule in favor of the department that have wild implications. So obviously first that cause of action that the U S

government can just jump in to any state law that it thinks violates a right because equity, um, what I, I hate it for a few reasons. A, that's limitless, as the Chief Justice said, but also, if that's how we're now vindicating constitutional rights, the state has to be acting orthogonal to the Department of Justice, the presidency, in order for the U.S. to vindicate that right. Do you think that the U.S. Department of Justice currently would have really sued over a similar California or New York law that we would have had two cases here?

No. And so it cannot be the case that your rights are vindicated against a state violating your constitutional rights if and only if the U.S. Department of Justice believes that it's in the political interest of, you know, their party, their political interest. So I don't like that. Second, the idea of, of course, federal judges being able to enjoin federal judges is nearly a joke. That would have insane implications. Oh my gosh, yeah.

insane implications. Oh my gosh. Yeah. Um, and again, like I do believe that the U S constitution was dramatically reordered with the ratification of the 14th amendment, but this would take that and turn it up to 11 where the States would almost no longer really exist. the states would almost no longer really exist. Well, and really, truly, the existence of the state as sort of a distinct entity, you're exactly right. So what would end up happening if you have the DOJ case, the United States versus Texas case, really decided in the maximal way, you really essentially deputize the DOJ case, the United States versus Texas case, really decided in the maximal way,

you really essentially deputize the DOJ. And make no mistake, the DOJ is not some sort of nonpartisan independent entity here. It's run ultimately by the President of the United States and run by an Attorney General nominated by the president, the senior leadership, all nominated by a political actor. And we all freaking know that the DOJ would have different constitutional priorities depending on which president is in office. We can't pretend otherwise. And interestingly, you have the Department of Justice trying to vindicate individuals' constitutional rights, which is also just a little bit different than the normal role of the Department of Justice to vindicate the rights of the United States. Now, in this case, she said it's the supremacy of the United States that is

at issue, the supremacy of federal law. I found that persuasive. I'll have to admit at certain points. But then you work out the parade of horribles and you're like, yeah, but it doesn't have to be. Yeah. Yeah. And you know, this, so the bottom line is this is a classic situation where a, a smart nationally minded Congress, sort of a constitutionally minded Congress would step up and create some guardrails. And that's just not in the cards. It's not remotely, possibly. It's like saying this is when it would be nice if the space aliens could set us straight. In fact, it might be more possible that space aliens will arrive and set us straight

than Congress at this point. But I guess one of the questions is how bad does it have to get before we wake up? And that question is lingering out there on a host of issues, not just super creative state laws designed to intentionally engineer temporary, long-term, though temporary, deprivations of constitutional rights. Well, David, we've got a ton over the next few weeks because, you know, basically the two weeks at the beginning of each month are going to be oral argument packed, and then we're going to

have two weeks to marinate. So before our next meeting, we will have the New York gun case. So lots to come up. But before we leave, I do want to correct slash clarify something I said about self-defense last time as a couple criminal defense attorneys and former prosecutors wrote in. So I talked about self-defense being an affirmative defense. It is, but it is more complicated than that. So I want to read from one of them. As an affirmative defense, the defendant has the burden of presenting evidence of self-defense to warrant self-defense jury instructions. But the prosecution still has the overall burden of proving beyond a reasonable doubt that it was not self-defense. Yes, that is a better way to state all of that.

And so I wanted to clarify slash correct, David. Well, I also want to mention we're going to be at the University of Tennessee Thursday evening for a live recording of the Advisory Opinions podcast. Watch my Twitter feed, watch Sarah's, we'll put out, is it, gosh, did I forget the time? 7 p.m. at the Baker Center at the University of Tennessee. It's at 5 p.m. At 5 p.m. Thursday night at the Baker Center at the University of Tennessee. So all of our East Tennessee listeners, you legions, you legions of East Tennessee listeners,

come please see us live Thursday night. It's going to be a lot of fun. And if you come see us live, you're also going to be able to have a look at baby Lila, my grandbaby, will be there as an additional inducement. And what'd she go as for Halloween? A hedgehog. You know, there is the hedgehog reference in a Supreme Court case. I believe there is, but we can't explore that because I have to go teach a class at George Fox University, Sarah, where I am right now, right outside of Portland, Oregon. So I have to leave. Well, then we will leave our listeners with this hedgehog knowledge. The fox knows many things, but Lila knows one great thing. Nice. I like it. Fantastic. All right. Please rate us on Apple Podcasts. Please subscribe on

Apple Podcasts. And please check us out at thedispatch.com. And please come see us in Knoxville on Thursday. And even if you don't, the podcast will be released. So we look forward to talking to you later this week. 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

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