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Jessica Mason Pieklo

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1 Nov, 115 tweets, 15 min read

Okay here we go folks

God Save the United States and this Court indeed

Roberts kicks off the mornings events by congratulating Justice Thomas on thirty years on the Court

Acting SG Brian Fletcher is up first for the Biden Administration and introduces SG Prelogar.

Prelogar was sworn in on Friday. This is one helluva first official day on the job

@ReproRights

Roberts then calls WWH v Jackson for argument. Brian Herron for @ReproRights is up first

Dives right into the the meat of the matter on Texas crafting SB 8 to evade judicial review

Marc Herron! I typed fast

Also Thomas is up with the first question all about whether or not federal law actually allows the clerks and other government officials from being enjoined here

The case Herron and Thomas are debating is Ex Parte Young

supreme.justia.com/cases/federal/…

Sotomayor jumps in and wants to talk about the harm at issue and WHY providers would have to deal with multiple lawsuits

Alito jumps in now and wants to talk about whether or not the Texas Constitution insulates SB8 as well

Amazing that we have Roe v Wade on the line and the word 'abortion' has come up maybe twice

The conservatives are really looking for ways to keep #SB8 in effect and find legitimacy for it afterwards

Roberts is asking about why folks don't want to just wait for federal review of #SB8 until after alllllllllllllllllllllllllllllll the Texas state court lawsuits have finished

Amy Coney Barrett is up now and wants to know if that state court argument is a real one -- can you make a constitutional undue burden argument in Texas state court

ACB's point is there may be no way to make a full constitutional defense in state court under #SB8

Alito doesn't like this-- clearly a betrayal by ACB here-- and jumps in and suggests the supremacy clause means YES ACTUALLY YOU CAN MAKE THAT DEFENSE AMY THANK YOU VERY MUCH

to be clear I don't trust ACB at all here but she's not wrong

Sotomayor brings Hearron back to the fact that providers and others face potential lawsuit after potential lawsuit and that has real chilling effects

Kavanaugh up now and wants to talk about enforcing federal law in state courts and we're back to Ex Parte Young

If you want to know why I say abortion law is all about POWER this is what I'm talking about. Nobody is talking about the pregnant people needing care right now. We're talking about the power (or lack thereof) of the state and federal courts to enforce or not abortion bans

Alito is very active during these arguments-- he clearly LOVES the insulated effect of #SB8 here

What else would Texas insulate from judicial review?

Breyer now jumps in and honestly nobody needs this right now

Breyer hates that judges and clerks are getting sued under #SB8 and you know what TALK TO THE TEXAS LEGISLATURE STEVE

Hearron now explaining how Texas lawmakers are the ones inviting all these lawsuits against court clerks

the state has made the clerks an "essential role" in this machinery to nullify the constitution, Hearron argues

I don't know why I just snorted when I heard ACB say the name Thunder Basin but I did

Alito is once again talking and his hypothetical is about a patient who wants to sue her abortion provider for casing her emotional harm for providing the abortion

YES HE DID REALLY JUST DO THAT

Justice Kagan is up with her first question of the morning -- dials into the exact relief that WWH is requesting

Hearron says they want an injunction blocking docketing of lawsuits against providers etc... while the courts figure all this mess out

This has been 30ish minutes of arguments around process and jurisdiction and meanwhile pregnant people in Texas need abortions RIGHT NOW

I'm a lawyer and SCOTUS nerd and have been covering abortion at the Court for a hot decade and these arguments are tricky for me to follow-- if you're confused don't feel bad -- that's part of the point of the morass of #SB8

Justice Gorsuch up now with his questions and wants to talk about the chilling effect of #SB8 and says basically "don't mask mandates and gun control laws also chill rights"

Love it when Neil just shows you who he is right away

Gorsuch is just running full-steam with this bad faith line of questioning on how ACHTUALLY lots of laws chill rights

Kavaugh's questioning again back to Ex Parte Young and I don't truly have a read on where he's going to land here

Okay now Texas is up for rebuttal

SG Stone gets a long walkabout for an opening statement and basically says 'this is nbd we should really just go home'

I am irritated that I didn't go ahead and mark a bingo card with "conservatives us a bullshit hypothetical about abortion regret or harm" as the only time we're going to talk about abortion in this hearing today

Roberts asks if the amount of the bounty (here 10K) matters-- what if it was one million dollars? Does that chill more?

Stone says no not really in case you want to know how bad faith these folks are

Roberts calls this out and Stone walks it back

Stone says the remedy here is for Congress to expand access to the federal courts and I just died in my seat

That is a FUCKING RICH argument to make for a bunch of reasons, let alone making it to John Roberts who has fully embraced LIMITING access to the federal courts for most plaintiffs

If ROBERTS is irritated WOWOWOWOW we are in the upside down

Roberts just basically told SG Stone to knock this shit off kiddo and that was fun

SG Stone sounds an awful lot like Mike Lee and it's driving me a little batty

Also RIP my life choices that I can pick out Mike Lee's voice in a crowd simply from listening to judiciary committee hearings

Breyer is up now with a question so if anyone needs a quick bio break you have a minute until he gets to it

We still haven't gotten to Breyer's question yet

Sorry I zoned out but it sounds like Breyer got to a question around Ex Parte Young

Kagan sums up #SB8 perfectly as finding the weakness in the armor of Ex Parte Young that "some geniuses" cooked up

HOW CAN ONE MAN SOUND SO SMUG THAT AMY CONEY BARRETT SOUNDS REASONABLE

I have no idea but SG Stone is *crushing* that vibe right now

Okay Kavanaugh back and is clearly focused on whether or not the Court is going to extend Ex Parte Young and sounds like he's going to let Stone explain (and pre-write) this section of the conservative line here

To translate-- this is really about WHERE we're going to fight out about the nonsense of #SB8 and also IF we can fight about it at all

Also this is me, once again, complaining about ALL THE CIVIL PROCEDURE WE ARE TALKING ABOUT WHEN PEOPLE NEED ABORTIONS RIGHT NOW

I just really appreciate Sotomayor cutting through all the bullshit here but damn I wish it wasn't on her shoulders to do so

Justice Kagan jumps in to talk about if this were a "normal law" like a "heartbeat law" the person to sue is the AG, right

Okay good to see Kagan really rolling up here sleeves here

Kavanaugh wants to know about the implication for Texas' model on things like gun control

SG Stone says this is tooootaallly different and even if its not the answer is for CONGRESS to fix the mess that Texas just made

To be clear-- Texas is arguing that the fix to SB8 which almost totally bans abortion and insulates itself from judicial review is for CONGRESS to do something about it DESPITE the fact that the CONSTITUTION protects abortion as a fundamental right

Texas basically: It's fine to functionally overturn Roe v Wade because Congress can always go back and make it better

ISNT THE POINT OF A RIGHT IS THAT YOU DONT HAVE TO ASK CONGRESS SAYS KAGAN

Texas says.... hmmm interesting premise but not really no I can see this going a couple different ways actually

Alito wants to talk about the state multi-district litigation that is also going on challenging #SB8

Stone says there are 14 ongoing right now

Sotomayor is up and makes the very clear point that the states can't nullify federal constitutional rights, either directly or indirectly

Kagan passes on more questions so now it's Gorsuch. He goes back to the chilling effect of #SB8

Barrett now up and wants to talk about the state court challenges -- she sounds pretty skeptical of this argument that the state lawsuits will be sufficient

Holy shit ACB actually said the word abortion in this argument

Just good to remember that as we're talking about all this procedure what we are really talking about is ABORTION

Hearron back up now for rebuttal and dives right into the 14 pending state court actions and notes those won't block SB8 across the board

Okay first round of arguments done HOW ARE WE DOING FOLKS

AND WE ARE BACK WITH USA V TEXAS

SG Prelogar is up now-- first day on the job!

Prelogar's opening statement is really solid, frankly

Opens with a forceful statement of the federal government's power to enforce constitutional rights and calls the threat posed by #SB8 "intolerable"

Thomas is up first and wants to know what interest the Biden Administration has in jumping in this fight at all

Just like WWH v Jackson was a power argument, so too will be USA v Texas

Be prepared to hear a lot about the supremacy clause and role of the federal government as rights enforcers

Thomas wants examples where the federal government has stepped in to defend constitutional rights the way the administration is stepping in here

Prelogar spots Thomas' game here and says the administration isn't just suing because Texas passed an unconstitutional law

She says that it's specifically the ENFORCEMENT mechanism is the reason the Biden Administration is here today.

Kagan picks up on that line of argument and again wants to know how to craft an injunction here

Kagan follows up with a question about how to craft relief here narrowly and while I didn't see her give stink eyes to Gorsuch when asking that question but in my mind I did

Alito jumps in now with "I appreciate your point" and somehow my laptop didn't get tossed across the room sua sponte

Alito invoking "the rule of law" while suggesting that the unprecedented effect of #SB8 is suing judges and not abortion bounties is Very Sam Alito

Alito offers up another hypothetical where a patient sues their abortion provider for harm done to them for providing the abortion this is a *thing* for him

Oh Gorsuch has some thoughts he'd like to share that this is really about overturning Ex Parte Young that's nice

The "Nooooo, Justice Gorsuch" with which Prelogar just answered hang with all the tone of a woman used to responding to men's nonsense in professional settings while doing so in a way that doesn't take the floor out from under herself

Gorsuch loves the idea that a right to abortion is a constitutional right that can only be raised "defensively" which should terrify everyone

Need an abortion but there's a law getting in the way? Sue to block it and hope the court rules in time for you to get that abortion

Also these are not new arguments. Conservatives have been making these same arguments since Roe v Wade was first argued.

Gorsuch goes back to the chilling effect of gun control laws

Prelogar says that of course those laws are chilling on the margins but that #SB8 is different and basically says that if a state passed a gun ban the Biden Administration would sue to block that too

Alito HATES that answer and so he jumps in to talk about the severability of portions of the law

Prelogar just blew up the conservative bad faith argument and wowowowow did that make Alito mad

Okay now it's Roberts turn and he starts off saying he's skeptical of the Biden administration's position here -- thinks its too broad and wants to know about limiting principles

Prelogar starts to answer but Roberts cuts her off and says you're seeking an injunction against the world, right?

No, says Prelogar

Roberts jumps back in and she lets him have his tantrum because she's a professional

Thomas and Breyer both pass on their turns for more questions so it's back to Alito

Alito serves up a hypothetical of nonsense that somehow doesn't include a patient suing their abortion provider. GROWTH SAM!

Justice Sotomayor is up now and wants to know what happens to the Biden Administration suit if the Court sides with WWH in the first case and lets those challenges proceeds

Prelogar says she's not sure it has any effect in THIS instance but it could likely have an impact on the Biden administration's willingness to bring FUTURE claims if the law is blocked/rights are sufficiently vindicated by the courts

To Sotomayor's credit here she doesn't totally like this answer and pushes back. OF COURSE the federal government should be vindicating rights when necessary like what Texas is ALSO doing with voting rights

Gorsuch asks for more examples of injunctions "against the world" so thank you Chief Justice for that ridiculous bad faith argument from the jump

Wow Prelogar is handling this nonsense from men with a level of grace no professional woman should have to endure YET HERE WE ARE

In summary: some white cis men got clever and Prelogar is showing she's as clever and wow they DO NOT LIKE THAT FROM THE LADIES

Okay so now it's Kavanaugh let's see if he has better manners than Gorsuch

Kavanaugh gives a nod to the fact that the Court isn't dealing with "the merits" of #SB8 but, my dude, by letting the law take effect you reaaaaalllly kind of are

Prelogar takes Kavanaugh to the point that abortion is a well-settled constitutional right which was quite lovely

ACB up now and wants to talk about what happens to the Biden administration's lawsuit if the Court allows WWH to proceed

I think she's showing her hand

Prelogar defends the position of the Biden administration and says it has to be ready for states to tweak their enforcement mechanisms to deal with any decision in the WWH case

So we need a pile-on injunction then, ACB asks?

Whoookay now its Texas and SG Stone and jokes that "it's been a long time" since he's been at the dais

yup nothing but chuckles around here this morning. Just laughs all around

Stone once again says it is up to Congress to fix this mess that Texas created

Thomas is having a nice little chat here with SG Stone about how little power the Biden administration has as compared to......the state of Texas

Breyer is up with his first useful hypo of the day that involves school desegregation before Brown and Sotomayor jumps in with more recents examples like Obergefell and can folks ignore those too?

Stone is stammering here and so he goes to an exit clause which is .... let the WWH case proceed but not this case.

So that's a tell

Kagan jumps in, jumps out, and then changes her mind and the room erupts in nervous laughter

Kagan is not having any of Stone's cleverness. If a Justice could grab a lawyer by a bowtie FIGURATIVELY OF COURSE that is what she's doing here to Stone

It's truly wild the ways in which the Justices let Stone carry on but just jump in to interrupt Prelogar. Kavanaugh literally just HELD HIS QUESTION right now until Stone finished his point

Kagan talks about the fact that Texas and the courts have run an experiment here so we don't have to guess whether people's rights have been chilled-- we know they have-- they can't get or perform abortions in almost every situation

Alito asks a question about what happens to the chilling effect arguments if Roe and Casey were altered in case your blood wasn't already running cold this morning

Ugh my stomach hurts. Now we get to hear from the dude who wrote this law

Mitchell is going to take the most extreme positions here to give the Texas SG cover and appear more reasonable than they are

Roberts asks the first question and wants to know Mitchell's take on whether or not the Biden Administration really has any dog in the fight

Mitchell says nope the proper course is for Congress to pass the Women's Health Protection Act

That answer was specifically crated for John Roberts who said, when gutting the Voting Rights Act, that if there was a problem from what the Court just did the answer was for Congress to fix it

All the men are passing the buck here but nobody is passing the bucket to support all the pregnancies forced to be carried to term now

Roberts and Mitchell are having a long talk here about power and Congress and the courts and I am here to remind everyone that people in Texas need abortions RIGHT NOW AND THOUGHT EXERCISES CAN WAIT

Sotomayor is doing a great job of tying Mitchell up on whether or not the state of Texas is creating agents of the states in enforcing SB8 -- Mitchell says no they can't be agents of the state because the state has no power to enforce just private parties and my head HUUURRRTS

Prelogar is up for rebuttal and has three points to make

1. The USA filed this suit because there was no remedy for the providers yet. The law had been permitted to take effect (BY YOU NUMPTIES) and immediately chilled constitutional rights like abortion after 6 weeks

Prelogar didn't actually call the conservatives numpties that was me editorializing

Second point: The nature of the sovereign interest is to prevent states from circumventing judicial review of constitutional claims. (Not just for abortion)

Third point: Let's really think about what it means that the State of Texas is saying that NOBODY can effectively sue to challenge this law

If Texas can do that, no constitutional right is safe.