13 Comments

Hello, hello? Is this thing on? I find it hard to believe that nobody has any opinions on this case. There’s no shortage of opinions on Twitter (even though this audience is far more well informed).

Expand full comment

David, I think this audience understands better than most that the briefs matter. We haven't seen the merits briefs. We don't know if an amicus brief that changes this case is coming.

It's easy to assume what the briefs will say. But I've seen too many cases at the Court that seemed straightforward turn out wildly differently than expected because of something in the briefs.

So I don't know about anyone else, but I can't form an opinion on this case at the post-Cert stage until all the briefs are in.

Expand full comment

A totally fair point. Of course, I welcome comments other than predictions. For example, readers might have advice to offer the parties on how to frame the arguments in their briefs; there are a fair number of seasoned appellate advocates who are subscribers to this publication. Thanks!

Expand full comment

I'll go first! I heard about OJ from Advisory Opinions, and subscribed! I'm 15 and in high school and am just really interested in law and law school some day! :)

I remember from last term the CFPB case which really centered on severability. You saw a lot of justices emphasizing that strongly in a case that wasn't all that high-profile. However, setting themselves up as strong defenders of that doctrine set them up to be consistent when they (as I expect them to) say that the ACA's "tax" was unconstitutional but it is severable. It reminds me of how a few weeks ago one of the justices (I think Sotomayor?) wrote a dissent where she really tore into the Court for not following (I don't know the proper wording of this) stare decisis and not really telling everyone that they were making new precedent. I wonder if it's like the CFPB case where she was trying to set herself up as consistent on that particular doctrine, so that if the justices slip in "sorry we can't get rid of Roe bc stare decisis" it will make them look a little better?

Expand full comment

Wow, you are only 15? You have a better understanding of the Supreme Court than many practicing lawyers!

Your memory is correct. I think you had in mind Justice Sotomayor’s dissent in Jones v. Mississippi. I’m extremely impressed!

And for what it’s worth, you did spell stare decisis correctly. 😉

Expand full comment

Thank you, I appreciate that so much!! I got really into law in 8th grade after my civics class and have been trying to learn as much as I can since! I’m glad I used that correctly and remembered the vague outline of that dissent! I like to find patterns like that. It’s important to remember that the justices are human and do try to appear consistent even when they have other motives.

Expand full comment

I think your prediction is about right, or at least as good as we can guess. Unlike David Huberman, though, I doubt the briefs will matter much. This is not a new issue that the Justices don't follow or haven't thought much about. On a question this defining, I suspect the Justices will have their own views about what they think they must do; what the lawyers say they must do seems unlikely to matter much.

Expand full comment

I agree with Orin, and would go even further: This is a case in which there will be dozens if not hundreds of briefs, and they will not matter one whit.

Expand full comment

Ok, I’ll bite, although I may regret it. I come at the issue purely from a Constitutional point of view. And I simply cannot find any constitutional basis for a right to abortion.

I also believe that the Court’s plunking this issue away from states and the political process, has made the issue far more divisive.

Roe has become THE defining issue for any Supreme Court candidate. I think that’s not a good dynamic. The court does far more than decide abortion issues. And having Roe be basically a litmus test has caused the public to view the court as far more political than I believe it is.

As far as predictions, I suspect Roe will be significantly curtailed, but not overruled. But, I also think that the predictions of doom and gloom, and no “reproductive justice” (whatever Professor Lipman means by that) are way overblown.

Expand full comment

Is it your thought that Breyer will retire at the end of the 2021 term (that's July 2022)? Also, can you explain to us the Republican votes in the Senate for Biden appellate nominees. Cornyn and Graham for example.

Expand full comment

Yes, my prediction is that Justice Breyer won't retire until the end of October Term 2021, i.e., summer 2022. I've pasted below a Twitter thread and an earlier Original Jurisdiction post where I lay out my reasoning.

In terms of why Cornyn and Graham are supporting some of Biden's nominees... because neither senator is running for president in 2024? But on a less cynical note, Graham has long been a member of the "qualified nominees should be confirmed even if I disagree with their jurisprudence" school of thought, and he has actually boasted about having voted for every SCOTUS nominee who has come to the floor during his time in the Senate (including Justices Sotomayor and Kagan).

https://twitter.com/DavidLat/status/1395859668514320385

https://davidlat.substack.com/p/confession-of-error-justice-breyer

Expand full comment

Thanks for this space David!

I think it is highly unlikely the Fifth Circuit will be affirmed, but it would be a radical move to reverse Roe or gut it in this case.

Regarding David H's comment about the briefs, I think the Petitioner's brief will be crucial. Their cert petition claimed that they don't necessarily want Roe or Casey to be revisited, but maintaining that view would be a fatal mistake, and that's because of the Chief's opinion in June Medical. He went out of his way to say several times that the Court had not been asked to revisit WWH or Casey, and hence the State had to lose. It seemed his vote would have been different had the State been more honest.

It's also important to note that this cert petition was filed not only before June Medical, but also before Barrett replaced Ginsburg. I can imagine that the question presented would have been more bold if they knew the switch coming up, and it would be in Mississippi's interest to explicitly request the revisiting of Casey.

Expand full comment

I totally agree. Ed Whelan also noted the significance of how the petition in Dobbs was filed prior to June Medical:

https://www.nationalreview.com/bench-memos/supreme-court-grants-review-in-mississippi-abortion-case/

Expand full comment