Advisory Opinions - Supreme Court Takes Mississippi Abortion Case

Episode Date: May 17, 2021

The Supreme Court on Monday agreed to hear oral arguments for what will likely turn out to be one of the most intensely followed abortion cases in decades: Dobbs v. Jackson Women’s Health Organization. The case challenges the constitutionality of Mississippi’s Gestational Age Act, a 2018 law that prohibits abortions performed after the 15-week point in a woman’s pregnancy (with limited exceptions). David and Sarah walk us through the likely outcomes of the case and explain how it fits in with the court’s jurisprudence on abortion related questions. Also on today’s podcast, our hosts chat about Caniglia v. Strom, a separate court case involving the Mississippi Supreme Court, the cicada invasion, and more. Show Notes: -June Medical Services LLC v. Russo -Whole Woman’s Health v. Hellerstedt -Dobbs v. Jackson Women’s Health Organization -Caniglia v. Strom Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And our Twitter feed, Sarah, has been blowing up. Everyone wants to hear what we're going to have to say about some Supreme Court developments today. So we have takes. But full disclosure, full disclosure, Sarah, you had a hundred percent right now. What's your percentage? I don't, I don't even know. I, so we are taping this later today because at our normal taping time, I said that it was not possible that David would have to do it solo.

And if y'all know, I didn't, I have not missed an advisory opinions pod ever actually. Yeah. And including the birth of Nate. Um, and today was going to be the first day. Thankfully, David agreed to delay it by four hours. Uh, I am, I've got day quill going, which I think I, that may be making things worse. I don't know. Uh, I've got some tea. This is post-vaccine life, David. It turns out if you walk around without a mask and just lick everyone you see like an enthusiastic

golden retriever, germs still exist. Who knew? Yeah, we were having this discussion in the green room before we launched the pod. And I'm getting over a cold. Most of my friends have some version of a cold. And it's so funny because it all happened about two to three weeks after they got their second shot. And I started to single-handedly prop up the Franklin, Tennessee restaurant economy. back for the wallet's sake, but we were meeting for dinner and everyone was meeting. It was out and about for the first time, really fully, truly, and was fully vaccinated with no mask requirements. And so we've gotten colds. The good thing... I'm never going out again. I'm going to be that person wearing a mask, never leaving the house, pretending that pandemic is still going on. I am so miserable right now. I never want this to happen again. No. Well, the only good thing is I was at the TV studio because I did CNN's reliable sources to talk about the law of armed conflict in Gaza yesterday. And I was kind of coughing a little bit. And the first question was seasonal allergies

as opposed to COVID. So that tells you we're turning the corner a little bit. So anyway, we've got stuff to talk about. We have a cert grant in a case out of Mississippi involving a ban on abortions past 15 weeks. There are some details to talk about this. This is going to be, I think, is it fair to say, Sarah, going to be the most intensely followed abortion case before the Supreme Court since Planned Parenthood v. Casey? No question.

In fact, I was going to ask, in my addled fever state, could you just run us through, I mean, Roe, Casey, like run us through abortion litigation up till this point, the major ones, ending with June Medical, so that we know where we're starting from.

Yeah, so basically let's sort of, you know, we'll go back to 1973 and to Roe. Roe, which held that the right of privacy was broad enough to encompass a woman's right to have an abortion. And it sort of set up this trimester framework with a kind of a sliding scale of state interest in the life of the unborn child with

first trimester, most hands off, third trimester, most state interest. And it was, this was the law that established the right to an abortion and constitutionalized the right to abortion. That's what everyone's familiar with. That's what, when you're talking about abortion in the shorthand, the right to an abortion in the shorthand, that's Roe. Well, Roe really is not operative as the legal framework. So Roe decided in 1973, constitutionalize the right to an abortion. In 1992, a challenge to Pennsylvania abortion restrictions came up to the Supreme Court in a case called Planned Parenthood versus Casey. And Planned Parenthood versus Casey was decided when I was in law school. This was, you know, this was only 19 years after Roe. So Roe is not really super, quote, settled precedent at this point.

A majority of the court were Republican appointees and nominees. And so there was a great deal of hope that Casey would overturn Roe. So Roe, Casey gets decided in 1992. And much to the disappointment of the pro-life movement i remember just being crushed just crestfallen um casey it didn't exactly um uphold roe and all the particulars it it did upheld it did uphold the constitutional right to an abortion and it began i think the you know with these words, what was it? Liberty finds no refuge in his jurisprudence of doubt, were some of the famous opening lines of

the opinion, which were essentially an ode to stare decisis, to the power of precedent. But what Casey then did was say that a law is going to violate a woman's right to an abortion if it imposes an undue burden, and that's the key words, an undue burden on the right to an abortion. So there were many pro-choice activists who were actually kind of ticked off at the Casey decision because they recognized that there was a lot of play in the joints. Undue burden is not a self-defining term. It's a term that was going to be fleshed out by precedent. And so since 1992, so here we are 2021 heading, I believe it was June 1992 when Casey was decided. It's May 2021. You do the math how long that's been. There's been almost three decades of case law

and state laws and a few federal laws, such as a partial birth abortion ban, that were passed to test the limits of Casey. And these are laws including things that would impose hospital-style health code restrictions on abortion clinics that would impose, for example, an admitting privileges requirement on abortion doctors who have to have admitting privileges within a particular radius from the, at a hospital within a particular radius from the abortion clinic. Without going into too much detail in all the ins and outs, the most recent case came from, the abortion case came from the last term called June Medical Services. And in that case was the first case post-Kennedy, because the court pre-Kennedy

pretty clearly still had a pro-choice majority, a pro-abortion rights majority. A lot of folks looked at June medical services very closely because it's going to be the first case with Kavanaugh on the court with what a lot of people presumed was a pro-life majority or a anti-Roe majority. And that case was kind of a mess. We talked about it a lot on advisory opinions, because what did it do? It actually upheld recent precedent that struck down admitting privileges restrictions in Texas in a case called Whole Women's Health. So it essentially upheld the ultimate holding of whole women's health by striking down the Louisiana law. But at the same time, it undermined whole women's health by circling the wagons around the undue burden standard

in a way that is a little bit too complicated to explain right now and doesn't have much to do with this Mississippi case. But the bottom line is, where we are now with the law is that we are under the undue burden standard of Casey. We are not under a trimester framework, but what's called an undue burden standard of Casey. We are not under a trimester framework, but what's called an undue burden framework with Casey. And so a law will be upheld if it does not impose an undue burden on abortion,

on the right to an abortion. It will be struck down if it does impose an undue burden on the right to an abortion. And what is and is not an undue burden on the right to an abortion. And what is and is not an undue burden on the right to an abortion is not super clear. That fair enough, Sarah, as a description? I think that's fair. And when you look at the Heller stat, June medical, and then the court that we have now, I mean, and we're going to get to this. Oh, look, you don't need Roberts as your fifth vote. Correct. Correct. So in one of the things about the June medical services case,

Roberts was the fifth vote in striking down the Louisiana law, but his opinion had some quirks to it that gave pro-life advocates some hope that, in fact, the court was going to take a more flexible view of undue burden. Now, okay, let's fast forward. Ruth Bader Ginsburg passes away. Amy Coney Barrett is appointed to the court. There's now presumed to be a 6-3 majority presumed to be a 6-3 majority of pro-life justices to varying degrees. Okay. We don't know to what extent the only person that we know really where they truly stand on the underlying abortion rights question is Thomas, who has written clearly that he thinks Roe and Casey are bad law.

We also know that the three justices who are our Democratic nominees are strongly supportive of Roe or Casey. The rest of the court, the other five, we don't know exactly, exactly where they are. Okay, so let's fast forward. There was a cert petition filed in a case called Dobbs v. Jackson Women's Health Organization. This cert petition was filed almost a year ago, Sarah, June 15, 2020. The issue in this case was the Mississippi's Gestational Age Act. It was enacted in 2018, so this was before a lot of the heartbeat bills that you've seen, which ban abortion after a heartbeat is detected. So this is preceded those as in 2018.

And it allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe abnormality. So essentially, broadly, abortion bans after 15 weeks of gestational age. Okay. Now, the Supreme Court accepted cert on the case. Let's get into some details here. There were three questions presented. Number one, whether all pre-viability prohibitions on elective abortions are unconstitutional. That was question one. In other words, can you, is it just off the board to place a prohibition on abortion if the child is not viable? Number two, whether the validity of a pre-viability law that protects women's health, the dignity

of unborn children, and the integrity of the medical profession and society should be analyzed under the undue burden standard or a different standard, Hellerstedt's balancing of benefits and burdens. Number three, whether abortion providers have third-party standing to invalidate a law that protects women's health from the dangers of late-term abortion. So those were the three questions presented. The court accepted review on question one only, whether all pre-viability abortions or prohibitions on elective abortion are unconstitutional. Now, this is going to be a big deal. Okay, why is this going to be a big deal?

One, there's no circuit split here. Loyal advisory opinion listeners will know that we, as we've said time and time again, you're generally not going to get a cert grant unless there's a circuit split. There's no circuit split here. This would be under the consensus of case law post Casey. This Mississippi statute, I think it's fair to say, Sarah, would be deemed unconstitutional as violating Casey. So there's no circuit split. This is a case that challenges Casey, or at least challenges the interpretations of Casey, pretty darn directly, and the court took review. So that's where we are. You know what I would love to see data on that we'll never have data on? So it only takes four votes to accept cert, right? But it takes five votes to

win the case. And so in a know, in a lot of cases, you have a circuit split or whatever else. I'm sure there are nine votes to take a case. But on some hot button issues, we know that people withhold their fourth vote or second vote, for that matter, because they're not sure whether they have the fifth vote when the rubber hits the road. I would love to see how often the four votes for cert are in the majority, meaning how often the four know that they have a fifth vote. I'm thinking here like Obergefell. We can presume that the four votes for that came from the four democratically appointed justices, Ginsburg, Breyer, Sotomayor, and Kagan. How sure were they that they had Kennedy's vote? Or did, in fact, they have five votes for cert and Kennedy voted for cert, therefore it didn't

matter. They were taking it regardless of whether they knew where Kennedy was. But the reason you'd want that data is for this case in particular, because if there were only four votes for cert, for instance. And Kavanaugh and Roberts, for instance, didn't vote for cert. How good are the four at predicting what their brethren actually believe on this? And, you know, we've seen it in the guns cases. That's why at least the rumor is that they didn't take cert on a bunch of the gun cases because they weren't sure where Roberts was. Right. So this is the first, I mean, the gun case you could argue is the first first, but boy, they didn't waste any time here. Roberts no longer the fifth vote. Let's move on with guns and abortion.

And if you're Roberts, the chief justice, but also the chief institutionalist, along with Breyer, I think, probably as the second chief institutionalist at the court, this is concerning, I think, for you. Like, you don't really want the court all in one term doing guns and overturning Casey and, like, stomping around sort of in Godzilla court mode.

So regardless of your judicial philosophy in terms of originalism or textualism, there's sort of this thing that sits above that, the institution of the court and its credibility. That, David, is to your point why this case is about to be such a big deal and it's going to be doing it heading into the midterms. What we like to do, listeners and readers of thedispatch.com, is kind of take a step back, chill out for a bit, sort of wait and say, okay, is this as big a deal?

Is everyone is hyping? Is this something that everyone needs to get really amped about? I'm going to say this is a big deal. Now, I'm not going to say this will for sure decide whether the Roe slash Casey is overturned or not. There are outcomes short of that, I think, that could occur, and we can talk about that. But I guarantee you the run-up to the oral argument in this case and the run-up to the decision in this case are going to be absolutely frenzied in American politics. They're going to be frenzied. That much I can promise you on the outcome, whether the outcome of the case will be revolutionary on one way or the other

on abortion rights, I don't know. I don't know. There's several ways in which this thing could go that would be something well short of overturning Roe and Casey, but would pretty dramatically limit abortion rights outside of the first trimester. Or it's not inconceivable that the court could overturn Roe and Casey. It's not inconceivable. I'm not saying that that's likely, but it's not inconceivable. And this is the first time since Planned Parenthood v. Casey in 1992 that I feel like I can say that. Do you think that's going too far? David, let me ask this question. If the court here decides pretty narrowly to uphold pre-viability restrictions as a general matter, but maybe not this one, or, you know, it's a very narrow ruling, they decline to touch Casey. Is that the end of this?

Is that the end of this? Is that the end of this? Is that the end of the constant efforts to overturn Roe and Casey? No. Oh, goody. Here would be... Okay, so here's what would happen. So I'm going to put on my prediction hat. Okay, so let's just take for a minute off the table that the court would overrule

Roe and Casey. Let's just for a minute, let's just take that off the table. I think it's unlikely that the court would overrule Roe and Casey. I'm not saying it's impossible. I'm just saying it's unlikely. Let's take that off the table for a minute. Here's sort of the one-two punch that I wonder about. So the court says in Dobbs, in the Mississippi case, the court upholds the Mississippi regulation. It doesn't explicitly overrule Roe. It doesn't explicitly overrule Casey. And it doesn't really articulate sort of a standard going forward. It just upholds the Mississippi statute. Then the next thing you are going to have are the appeals from the heartbeat bills that are going to come up. If the court upholds Dobbs and rejects review on the heartbeat bills, then you're probably going to have your status

quo for the next while, would be my view on it. So it would have to take two things happening at once. It would have to be that the court would have, if you're going to say that there's going to be a stasis and an abortion jurisprudence on the court short of overruling Roe and Casey, it would have to be upholding Dobbs, but then doing something about the heartbeat bills. And that, I think, would be maybe the new reality. That would be my guess. think would be maybe the new reality. That would be my guess. Well, I have a feeling this isn't the last time we're going to talk about this. No. Oh my goodness. Can you imagine our advisory opinions after the oral argument? It might be longer than the oral argument.

So one last thing on this. Here's how I'd break it down, listeners, the options of what could occur here. One is the court overrules Roe and Casey. I'm saying not impossible, not impossible. I'm not saying likely, but possible. If it overrules Roe and Casey, two things will happen. One, that's going to toss all abortion law back to the states. And number two, it's going to create a political storm in the United States of America with unpredictable effects for the midterms, which would then have unpredictable effects for things like court packing.

But if you want to hear a lot of talk about court packing, overturn Roe. In fact, Sarah, if you remember my book, one of the secession scenarios was Roe is overturned, court packing, new court upholds abortion rights. So anyway, let's not go there. Anyway. Anyway, let's not go there. Okay. Anyway, let's not go there. Okay, so one is it overturned Rowan Casey, sent back to the States, giant political firestorm with unpredictable consequences. Number two is it upholds the Mississippi restriction,

and then in the next month or year or two, it rejects the heartbeat bills. Well, then you have a new reality where essentially the legal framework around abortion in the United States of America becomes very much like Europe. Abortion is pretty freely available in the first trimester, often heavily restricted or not available after the first trimester. So American abortion law in pro-life states would start to look a lot like Europe, in my prediction. I think that that might be most likely. The third is, surprise, surprise, the court strikes down the Mississippi law, at which point you have a stasis, a different stasis, a stasis that's essentially the status quo. And you would have a whole different layer

of fury. And that fury would come from the right after, are you freaking kidding me? We have a 6-3 court and this is what we we get. So, did I miss a scenario, Sarah? I think there's sub-scenarios under some of those, but no, those are the buckets. Those are the buckets. All right. So, buckle up. Buckle up. This is going to be... If you thought the gun case was going to be big... I know. Boy, this is going to be... If you thought the gun case was going to be big... I know. Boy, this is going to be big. Good news, though.

No one's going to care about the gun case now. That's true. That is true. You could have a gun decision written by Alito and Thomas jointly that essentially mandates the issuance of a handgun to every adult. And it's going to be nothing compared to that.

Not shall issue, shall carry. Exactly right. Oh my goodness. All right. Okay. But speaking of oral arguments and things that we learn at oral arguments and why they can be a little misleading. Um, then we learn at oral arguments and why they can be a little misleading.

So remember, David, we talked about that case where the guy had gotten his gun out and told his wife, you might as well shoot me now. She left and stayed at a hotel room and then he didn't answer his phone the next morning. She got nervous, called the police for a welfare check, yada, yada, yada, as they say. The police send him for a psychiatric evaluation, and then after he's gone, sees the guns from his home without a warrant. The oral argument was really interesting to me because you had Robert start off the argument with this very visceral scenario of the 80-year-old neighbor. You invited her over for dinner at 6 p.m. She's never been late before. She doesn't show up. It's now 8 p.m. Can you call the police to do a welfare check? And oftentimes in oral argument, both sides

try to read the question and come up with a way to say like, well, your honor, yes, there's a way to do what you want to do and still rule for me. But that's not what happened to this oral argument. One side said, absolutely, the police can do a welfare check. And the other side said, absolutely not. You need a warrant. And then the chief justice said, okay, how about the next day at 8 p. PM? Nope, you need a warrant pursuant to a missing persons report. So when the opinion came out, David, I was quite surprised. It was a short opinion written by Justice Thomas that basically said the fourth amendment means nothing if it doesn't mean that you can't go into the guy's home and take his

guns without a warrant and without his permission. And it was very short. It was kind of like the end. But... It was amazing. As somebody pointed out on Twitter, Thomas's entire opinion can be screenshot in one tweet. But then you had Alito and Kavanaugh going back to the chief justice's question.

In fact, all of the other opinions are about the chief justice's question and saying, but we didn't touch this. This was not decided. This is still fine. Some versions along that spectrum of either it wasn't decided or this is just different and therefore okay. I think this is a good example of an opinion to hold up where you get a unanimous court on a very narrow holding and leave all these other questions unresolved. And David, I guess I walked away

this morning thinking like, wow, I kind of think this is the Supreme Court at its best. Yeah. No, I thought I didn't have that exact thought, but I had one very similar. It just, it was one of these things where you read it and it just seems so sensible. Yeah. And you have these concurrences that are pointing out things like, hey, and this and this. And it's like, what concurrences are meant to do? They reference the oral argument. And you can leave no doubt that the oral argument mattered here also. I don't know, like the whole state, this whole case from cert

to oral argument, to opinion of a unanimous court, to concurrences, I feel like I could hold up to law students and say, here's what we're all striving for all the time. It's just hard to get to here all the time. Yeah. And, you know, what's a couple of things interesting about this. One is just sort of like just a pure doctrinal issue here was whether the ability to remove the firearms from the premises fell within what was called a community caretaking exception to the warrant requirement. to the warrant requirement, which would be a pretty huge exception to the warrant requirement if you granted sort of a broad community caretaking exception. And Thomas was like, nah, dog. Does this qualify for nah, dog doctrine? Oh, yeah. I think this might be, if not heart of nah, dogrine, like certainly part 1A. Yeah, this is in the textbook, in the con law textbooks that are being written now that will include a Naught Dog Doctrine section. This case is in it. This absolutely community caretaking,

broad community caretaking, applying to your home, Naught Dog,, not odd. But the interesting thing about it is, and what I like about this case is it's a unanimous case, even though it has, you know, we have constantly talked about different kinds of distortions in the law. So you would have the abortion distortion. That's one we've talked about where not so much now, but two, three decades ago, there was a distortion in other, for example, First Amendment jurisprudence when it came to abortion, where, for example, greater restrictions were permitted, say, on abortion protesters than on other forms of protesters. That would be a part of an abortion distortion. We've talked a ton on advisory opinions about the drug war distortion, that in an awful lot of cases where you see impairment of constitutional rights from the

First Amendment, free speech, to free exercise, to unreasonable search and seizure, time and time again, these come up in the context of the drug war. So you've had a drug war distortion, you've had an abortion distortion, and I wondered in this, if you're going to have a guns distortion, at least with some part of the court, because it involves seizing guns and guns are a hot button culture war issue. And no, no, this was, you just can't go into somebody's home for a community. You don't have this broad community caretaking exception to the fourth amendment. And it was, it was refreshing.

It was refreshing. I completely agree with you. Yeah. Um, so that was the big opinion today. And that means we still have quite a few outstanding hit parade cases. Oh, I know. I know.

And I don't know about, well, Sarah, you were feeling poorly. So you may not have been on the SCOTUS blog live blog while all this was unfolding. But I was having an increasing amount of excitement as the opinions rolled out because as they rolled out they're rolling out you know in order of seniority and so well we didn't have yeah reverse order well we didn't have a Barrett opinion you know we we had a Kavanaugh opinion so that's second least seniority we had a Gorsuch opinion I'm thinking'm thinking, my goodness, we're starting sort of low on the seniority totem pole. Where are we going to end up with a Roberts opinion? And if we end up with a Roberts opinion,

that's going to be Obamacare. Are we going to end up with an Alito opinion? If it's an Alito opinion, it's probably Fulton. But no, but no, but we, no, we did not. So for anyone who has ever remembered being in school, you know how like when that, if you have a ton of work, like if you have five finals, you're actually pretty diligent about studying for all five. But if you only have one and it's a week from now, you're kind of like, well, I could clean my room. I've always wanted to try

that new recipe. So a little bit of that can happen at the court. Compared to last term, David, we have far fewer hit parade cases. Yeah. And like a gas, they expand to fill their container. I think last term, we actually would have had the Obamacare case last month. I think we might have even had Fulton this week. But that's because there were then so many cases that we're going to push into June. This time, actually not that many. And so I think we're seeing the gas expanding to its container principle slash the single final instead of the five finals. So please, please, Sarah, do not tell me that we're going to get Obamacare, Fulton,

an angry cheerleader on the same day. That would be a nightmare. Just for us. Yeah. Yeah, just for us. Well, then our advisory, our listeners would care because advisory opinions would be longer than Lawrence of Arabia. Then we'd have to have

an intermission. Oh, it would be the Snyder cut. Yeah, no, that we actually do do a version of that. Like we'll just take an intermission and we'll have multiple episodes, maybe that we even tape

on the same day. But like we break them up into episodes and you and I like, you know, go get another drink in between. Yeah, exactly. All right. So, Justice Isker, did you realize, did you know that you have, as of this moment, been appointed to the Mississippi Supreme Court? I'm thrilled. I accept this honor with all of the sense of duty and seriousness with which it entails. Okay. Outstanding. And why, listeners, are we going to the Mississippi Supreme Court? Because a really fascinating case was decided that made the Mississippi Supreme Court trend on Twitter. I want to talk about distortions, drug distortions. It only trended on Twitter because the topic was marijuana. But it trended in my brain because I thought,

as soon as I read this case, I want to know how Justice Isger would decide this case because it's a crazy legal issue. It is a weird legal issue, and it is this. So Justice Isger, the people of Mississippi voted pursuant to Article 15, Section 273.3 of the State Constitution of 1890, where they reserved unto themselves the power to propose and enact constitutional amendments by initiative. They did, by strong majority, enact the legalization of medical marijuana, which is Initiative 65.

Established a legal medical marijuana program so that, Justice Isker, not to bias you one way or another, if you were in Mississippi and Initiative 65 is upheld, rather than Dayquil, you could be like, you know, on some of that Louisiana lightning. Eating my brownies, having a fine day. Yes, exactly.

Where you're like, I don't want this cold to end. Okay. So, under the Mississippi Constitution, Article 15, Section 273.3, is a requirement that the signatures of the qualified electors from any congressional district. So in other words, you have signatures that puts the initiative on the qualified electors from any congressional district shall not exceed one-fifth of the total number of signatures required to qualify an initiative petition for placement on the ballot. In other words, you got to spread out the signatures across the five congressional districts of Mississippi.

Okay? Are you with me, Justice Isker? I'm with you. We've got a problem, however. There's only four districts, not five districts, that petitioners point out to you that Mississippi now has four,

not five congressional districts. They further note to you that four multiplied by 20, the maximum percentage of signatures that can come from any one congressional district, equals only 80. So it is not possible now, because of the change in congressional districts, to place an initiative on the ballot. The only way left, therefore, to amend the Constitution is to do it through, there's two vehicles. One is the ballot initiative process. Then the other one is the legislature may propose amendments that are voted on by the electors of the state. So, Justice Isker, question is, was Initiative 65 lawful? Or is the fact that Mississippi only has four districts instead of five under textualist analysis, are the petitioners correct? You can't get to 100%. are the petitioners correct? You can't get to 100%. You can only get to 80.

The Constitution is broken. It was broken by reapportionment. And there's now only one lawful way to amend the Mississippi Constitution. What say you? I am willing to do a lot to read out nonsensical provisions of a statute or the Constitution. However, I am not willing to rewrite it entirely. The text was clear. And unfortunately, you know, sometimes statutes are written poorly. In this case, the constitutional section was written poorly. statutes are written poorly. In this case, the constitutional section was written poorly. You got to rewrite it. Sorry. It says what it says. I can't. This isn't like, well, I can broadly read this one. No, it is what it is. You wrote it badly. You should have contemplated the fact that there could be a change in apportionment. This isn't something we invented in the 21st century. Apportionment is in the U.S. Constitution. So no brownies for me in Mississippi. But Justice Isger, the original intent here is absolutely crystal clear.

It is. It is. It is to have an equal proportion of electors from the state, from the judicial district, from the congressional districts to allow for a ballot initiative. It would have been so easy to write it that way. An equal proportion of signatures from each congressional district. And then I would have happily baked some brownies myself. But. So Justice Isker, you're telling me

that the drafters of the Mississippi Constitution did not intend for a ballot initiative process to exist if there were only four members of the congressional delegation? No doubt they did intend that, but their intent is not enough to overcome not just the plain reading, the only reading of the words that they've

passed now is have you ever like is this not a one of the best examples of a conflict between textualism and originalism you could ever imagine it. And it like, it does it for anyone listening to this podcast, like this is a good exercise to go through. How would you have ruled on the Mississippi Supreme court? Um, yeah, it turns out I'm a textualist who knew, actually I knew, I knew I was a textualist. You knew, you knew, you knew, but it is absolutely fascinating. This section of the Constitution, they absolutely, clearly, 100% intended. Is there really an argument that if it was 25% across four, that that would, but no, we don't want to have a ballot initiative under those circumstances, that they wrote it under the assumption.

And the crazy thing is, what if Mississippi's population grew and it got six? It had six. Well, could it still work? Because then it'd be no more than 20. Yeah, then it would be fine. It's like they only... Yeah, then it would be fine.

They thought Mississippi would only grow in population. Relative to the rest of the country. Yeah. Wow. That is quite a case. Speaking of growing in population, David, it's cicada season where I live. And I tried so hard this weekend to go find some cicadas and I couldn't. And everyone else is seeing cicadas, but I can't. I'm really sad about it. I have a little sparrow's nest in my house. It's in my house, but not inside my house. They have cicadas. I can see the little cicada bodies underneath, so I know that there are

cicadas nearby. I really want to give one to the brisket so I can take a picture of him at one years old holding a cicada so that then when they come back in 17 years, he'll be 18 years old holding a cicada. And yes, I am going to make my 18-year-old take that photo for sure. But, David, my question... It will be a prom picture in 18 years.

It'll be a prom picture with a cicada. Yes, it'll be so great. Maybe he can take a cicada to prom. But David, my question to you is, there are a lot of smart, interesting people who I consider colleagues, friends, mentors, who are really considering eating cicadas. Where do you fall on the cicada recipe

home cooking scale right now? So is this, so my question about this is because we have seen periodically and sort of fringe quarters of the environmental world, which really doesn't like factory farming and beef and pork and all of that because of its effect on climate change. Oh, this is farm to table.

Well, grass to table. Yeah, yard to table. Yard to table. So we have seen for a while some really fringe stuff that says, hey, let's eat bugs, in which then it's just like massive clickbait because then people on the right on Twitter will go, see, the left wants you

to eat bugs, you know, because it's like one article. And then that one article gets 200,000 clicks because it's proof that the left wants you to eat bugs. So then someone says, we need more bug eating articles. The last one got 200,000 clicks. So then you end up with a bug-eating conversation because of clickbait. And so are you saying it's moving into real life? Because I've never heard that. Okay, so Tamara Keith from NPR, who lives not too far from me,

she tweeted a video of a little solo cup that she had full of squirming cicadas that she took home. And she at least implied that she was thinking of cooking them. She had not committed yet. And David, I felt really not torn, actually. I had one feeling, one feeling only. Revulsion? These bugs.

No, David. one feeling one feeling only revulsion these bugs no david these sweet little creatures have lived underground helping our ecosystem for 17 years and finally they are of age all they want to do is come out and have sex for five to six weeks and then die that's it and what you have done all you people out there collecting cicadas, that's it. That's all. They're 17 years. They have been pining for one another. And you have prevented them from doing the only thing that they came out to do.

At least wait. Let them get it on with some of their cicada friends and then collect them and eat them. I'm fine with that. But their little faces are so cute. They are these little grubs. And let them grub. They're adorable. They're smiling at you. And they're just here. They're like the hippies of the bug world. They just want to have their orgy. Let them have it. So I join you in opposition to cicada eating for very different reasons. It's not that I have any moral objection to cicada chicanery at all.

Let the cicadas cicada, okay? My issue is just with eating cicadas. That's just a hard no. Like, there's just no. There's no way. That's just a hard no. Like there's just no, there's no way. Oh, wait a minute. We just got, oh my gosh,

this is a newsflash from Audrey. Alec, Alec, our own Alec at The Dispatch, thedispatch.com is planning on doing

a multi-course meal for an article for The Dispatch. This is planning on doing a multi-course meal for an article for the dispatch. This is not a drill. Okay, so number one, how can I intervene to stop that for two reasons? So one, for Alex's sake, because he's going to be eating a bug. Number two, voluntarily. for Alex's sake, because he's going to be eating a bug. Number two, voluntarily.

And number two, everyone who's already suspected we're a whole bunch of libs, it's just going to be confirmed. I mean, it's going to be like, check out the dispatch. It's like to the left of Jezebel now. Like they actually- Jezebel only did one course. Yeah, Jezebel, they've only talked about it. They only did it for like an appetizer. He actually ate it as the one course. Yeah, Jezebel, they've only talked about it. They only did it for us,

like an appetizer. He actually ate it as the main course. So... I think everyone should give wide berth to our cicada friends and let them live

their best life for these five to six weeks that they join us. It is a treat. It is an honor to be among them. And seriously, just like watch them.

They're so cute. And... Oh my God, he's planting on Fettuccine Alfredo. Oh! No. I don't even... Okay. I think we're going to lose about a third of our listeners just because we planted in their minds the image of Cicada Fettuccine Alfredo.

I don't even quite understand what role the cicadas play in that, but no need to, please don't give us more details. I just want everyone who's thinking about eating the cicadas to know that also, cicadas do have a fungal infection, some percentage of them. The fungus attaches to them during this period and therefore is with them through that whole next generation's life cycle. When they emerge, the fungus takes over the lower third of their bodies and their butts fall off.

Oh, that's a bad fungus. Their butts are replaced with a white spore secreting thing so that when they fly around, little white spores drop on all of the other cicadas and all of the cicada larva and stuff like that. And this fungus, they believe, also injects a certain psychedelic into the cicadas' neuro system so that the cicadas, A, don't know that their butts have fallen off, and B, are probably in a realm of cicada life that we can't fully comprehend unless you were at Woodstock. Okay, from producer Caleb.

Wait. like at Woodstock. Okay, from producer Caleb. Wait, from Audrey. Ask readers if they have advice on wine pairings for cicada. From producer Caleb. I don't like this episode anymore. I was just about to say that here we have one of the most significant cert grants

in the last quarter century or more of the Supreme Court of the United States. And we might have spent as much time talking about cicada butt fungus as we have spent talking about that cert grant. David, if your butt fell off when you emerged from the ground, you'd want to talk about that as well. It would seem like some breaking news to you. Oh my goodness. All right. Well, listeners, let's move on from cicadas. I have one quick pop culture recommendation for you. Sarah, have you been watching Mayor of East Town? No. Okay. So I have a general rule in life. And that general rule is that if HBO is showcasing a Sunday night murder mystery of any kind, whether it's sort of supernatural like the Stephen King, oh gosh, I've already forgotten what that was called. the Stephen King mystery that was, you know, earlier this or late last year, or the undoing the Nicole Kidman, Hugh Grant.

I had taken a pass on mayor of East town and I'd seen the opening. I'd seen that the pilot kind of liked it. Nancy didn't really like it, but we dove back into it. My goodness. It's good. My goodness. So that's my, that's my ending pop culture recommendation. We started Firefly this weekend, the 2002 sci-fi western. Yes. With Nathan Fillion. Yes. So I have good news and bad news for you, Sarah.

Yeah? So the good news is, how far into it are you? 45 minutes into the first episode? You've got a lot of good TV ahead of you. Okay. So here's the bad news. You're about to be enraged because they canceled it. And you're going to watch this

and you're going to say, this is great sci-fi. I can't wait to watch the other 10 seasons of this because this is so good. And then you're going to get to the very end and you're going to realize they canceled this thing. And you're going to think that that's one of the worst entertainment decisions in your lifetime.

And you're going to be so upset, A, that this occurred before the era of streaming, because this would have never been canceled in the Netflix era. And then you're going to be enraged that Netflix or Amazon Prime hasn't brought it back. It's one of the television's great injustices. So enjoy until the anger, until the rage. Thank you. All right. I'm expiring here.

My voice is going. I think mercifully we shall now bring this podcast to an end. I think so. But we will be back on Thursday, and hopefully Sarah will be fully recovered. Less stigma. And I don't think we'll have any more SCOTUS opinions by Thursday. We shall see. I don't think so.

But we'll have great content. I don't know what to preview yet, but we'll have great content. But in the meantime, please go review us on Apple Podcasts. Subscribe on Apple Podcasts and check out thedispatch.com. And we will be back will we have an update from alec on this cicada meal or might that wait for the weekend i don't know but again like do send those wine pairings yes we do we do want the wine pairings we do want that thank you in advance white or red i don't know

yes thank you in advance for the advice for Alec. And we will talk 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,

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