Wednesday, March 04, 2020


Vox's Ian Millhiser is unexpectedly optimistic about the abortion case currently before the Supreme Court.
Wednesday morning’s arguments in the biggest threat to abortion rights to reach the Supreme Court in nearly 30 years went so badly for Louisiana Solicitor General Elizabeth Murrill, who was defending Louisiana’s restrictive abortion law, that by the end even Chief Justice John Roberts appeared uncomfortable with her arguments.

Murrill spent 20 awkward minutes appearing to test whether it is possible to botch an argument badly enough to lose a case widely expected to go her way.
The case is June Medical Services LLC v. Russo, and it covers the same ground as the 2016 case Whole Woman’s Health v. Hellerstedt, in which the now-retired Anthony Kennedy provided the fifth vote to strike down a Texas law requiring abortion doctors to have admitting privileges at a nearby hospital. The Court now has five fervent abortion opponents, so it would seem as if the law will be upheld, but, according to Millhiser, terrible legal work might lead to a ruling against the state.
Roberts repeatedly asked whether there is any difference between the burden the Texas law struck down in Whole Woman’s Health imposes on people seeking abortions, and the burden imposed by the nearly identical Louisiana law.

Neither Murrill nor US Principal Deputy Solicitor General Jeffrey Wall, who defended the law on behalf of the Trump administration, was able to give Roberts a straight answer.

... Twice, Roberts inquired what the “benefits” of such a law were, and he did so in a way that directly contradicted the state’s defense of its law.

... “I understand the idea that the impact might be different in different places,” the chief justice told Murrill at one point, “but as far as the benefits of the law, that’s going to be the same in each state, isn’t it?”
Are the defenders of the law genuinely incompetent? Or is Roberts doing precisely what I predicted he'd do last fall when the Court agreed to take the case?

I wrote at the time:
... does John Roberts really want GOP-appointed Supreme Court justices blamed for a sudden massive decrease in abortion availability a few months before a presidential election?

I think this raises the possibility that Roberts will join with the Court's liberals to say, "Hey, this is just like the Texas law, so I'm going to shock you by upholding precedent and striking it down."

... Roberts doesn't want potential Democratic voters angry and riled up, and he'll be pleased if Republican voters' takeaway is "We need to reelect Donald Trump because we obviously need even more right-wing justices on the Supreme Court." If I'm right, he'll take the heat -- the angry tweets from President Trump, the calls for his impeachment on Fox and talk radio -- if it leads to a Trump win and thus puts more Federalist Society corporatists on the bench. The right-wing judicial establishment has been playing the long game for years, and Roberts knows that an election year is a good time to fake being a centrist, even if the man who'll directly benefit from the fakery, Donald Trump, doesn't get it.
In the fall, I thought Roberts might also join with the liberals to uphold the Affordable Care Act, but a case challenging the ACA won't be decided until after the election, so (as I said on Monday) the Court will feel free to kill the law.

This is different. I'm betting that Roberts will side with the liberals. His skepticism about the case made by Murrill and Wall was utterly predictable.

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