Carter Snead, professor of law at the University of Notre Dame, has a great video primer on today’s oral arguments and what's at stake. See here: https://www.youtube.com/watch?v=W_LwoiW2jUo
I agree with Ed below that it is extremely difficult to find a middle ground in Dobbs. Certainly, the Court can always come up with a split-the-baby solution (if that phrase is not a little too on the nose in this context), but there really is no way to uphold the Mississippi law without doing one of two things: (1) overruling Roe and Casey, or (2) replacing them with a new regime of judicial limits on state abortion regulation.
That's a problem for both sides of this case. It's a problem for Mississippi because some of the Justices who may be sympathetic to overruling Roe – particularly Kavanaugh, Barrett, and Roberts – probably would have preferred not to be rushed into doing so the very first time they had the opportunity. Roe wasn't built in a day. Like the Obergefell same-sex marriage decision, it was the result of careful building of the groundwork in a series of prior decisions, going back to Griswold v. Connecticut in 1965. Each of those decisions invented some new thing that wasn't in the Constitution, and they contradicted each other (Griswold relied on the traditional importance of marriage as an institution older than law, yet the Court within a few years said that it was irrational to distinguish married from unmarried couples), but the point is that they chiseled footholds that could be used to scale the summit. Nothing of the sort has been done here.
It's a problem for the respondents because their best odds for keeping Roe depend on appealing to the Justices' disinclination to disturb precedent. Once they have gotten over that hump, it will be very tough to convince Kavanaugh, Barrett, Gorsuch, or Roberts to sign on to inventing a new set of pro-abortion doctrines rather than leaving the old ones in place.
A decade ago, in his concurring opinion in Citizens United, the Chief Justice spelled out several principles of stare decisis (adherence to precedent) that cut very strongly in favor of overturning Roe and Casey. It's difficult to imagine that he didn't have those cases in mind when he wrote his opinion (as it's difficult to imagine that any justice writing about stare decisis isn't thinking about Roe and Casey).
If you want to listen to the oral argument yourself, go to the Supreme Court's home page, scroll down to the green LIVE button just below the listing for today's argument, and click on it. (You won't hear anything until the justices enter the courtroom at 10 a.m.)
One big think to watch–or, rather, listen–for: Are any of the justices looking for a middle ground between overturning Roe/Casey, on the one hand, and invalidating the Mississippi 15-week law, on the other? As I've explained, there is no coherent middle ground available, so it would be disturbing if any of the conservative justices seem inclined to make one up.
In case some of our readers are unfamiliar with the drill for a Supreme Court argument: today's abortion case, Dobbs v. Jackson Women's Health Organization is the only case on this morning's argument calendar. You can tune in to listen live to the oral arguments here, but there is no video and unless the advocate says their name, you will have to know the Justices' voices to recognize who is asking questions. Some of them are easier to pick out than others, especially if Justice Thomas graces us with his rumbling baritone. The Court has returned to in-person arguments after spending 2020 and the spring of 2021 hearing cases over Zoom. The courtroom is a surprisingly small one, with a few rows of seats packed tightly together and the nine Justices arrayed in a horseshoe, the Chief Justice at the center and the most junior Justices at the wings.
The old rule of thumb for lawyers is that the legal briefs are the lawyers' time; oral argument is the court's time, and the Supreme Court is an extreme example of that. The Justices typically consume at least half the argument with questions. Only in a really lopsided case will the lawyers find themselves talking at length uninterrupted. You can tell sometimes how a case is going from argument, but in a big case like this one, the Justices whose votes are actually decisive may be very hesitant to show their cards. And sometimes they change their minds later. Chief Justice Roberts sounded very much like a man ready to throw out Obamacare during that argument, but he reversed course after that and voted to save it in June 2012.
The Court has allotted 70 minutes for argument, 35 to Mississippi, 20 to the plaintiffs challenging the law, and 15 to the Solicitor General, who is on the plaintiffs' side. Mississippi (petitioner) will go first and typically reserve time for the end for reply and rebuttal. Arguments do not run overtime; the limits are strictly enforced.
The Court's term is likely to end the week of June 27-July 1, 2022, and unless the Court suddenly hits on some simpler resolution of this case, I would wager on Dobbs being handed down the last day of the term, probably June 28 or 29.
In an op-ed in today's WSJ, I explain how the Chief Justice's jurisprudential principles should lead him to forge a supermajority to overturn Roe.
Court might add to today's drama by issuing a ruling in Texas Heartbeat Act cases right before oral argument begins. Those cases were argued 30 days ago, and extraordinary expedition in briefing and argument suggested that Court wanted to rule very quickly on them. The more time that has passed, the more likely it is that Texas wins. Those cases are also a useful reminder of the risk of reading too much into oral argument.
Good morning, and let us hope it is a good one. The mood of a Supreme Court argument morning is always a strange one; it's like gearing up for the Super Bowl, but there's no scoreboard and nobody knows who won until six months later.
The AP has a rundown on the three lawyers arguing today: Mississippi’s solicitor general Scott Stewart, a former Clarence Thomas clerk, arguing for Mississippi; Julie Rikelman of the Center for Reproductive Rights, a veteran pro-abortion advocate; and, for the Biden administration, Solicitor General Elizabeth Prelogar, making her eleventh argument before the Court.
Welcome to our live blog! The oral arguments should be under way shortly, but as you wait nervously, it's always a good time to check out our stellar End Roe special issue. https://www.nationalreview.com/magazine/