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).
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?
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.
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.
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.
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.
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).
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?
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.
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.
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.
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.