Thread by @RMFifthCircuit

There are way better people to follow this morning for Dobbs analysis (I.e., everyone). Just a little note for the non-lawyers about process, though.

In many arguments, the lawyers are trying to persuade the Supreme Court about the law in some way. Argument, right? 1/

But that’s not really what is going on this morning. There’s no argument even Elizabeth Prelogar can make that’s going to blow someone’s mind. They all know the arguments. So what’s the point? /2

Well, it’s the first time the Justices engage with each other on this case. So they’re really talking to each other through the lawyers. That’s true of every argument to some extent, but *really* true of this one. /3

So, nothing the advocates say is very important today, in my view. What’s important is listening to what the justices on what we think are the margins are saying to each other while pretending to ask questions. We’ll get a lot of info through that process. /4

So don’t focus on which lawyer sounds awesome, or is making some great point. Doesn’t matter. Listen to what the judges are saying. /e

The only thing you really need to listen to is when the Chief, Kavanaugh, and Barrett talk (so far, none of them have).

Again, we all know what Justice Sotomayor thinks about this, and this argument about the "stench" overturning Roe would create around SCOTUS are just arguments to her colleagues. That is not any kind of question.

OK, here's the Chief, who is also not really asking questions, but is indicating to me that he thinks viability in Roe was dicta. That's actually an important data point.

I.e., perhaps he's trying to craft some kind of non-viability affirmance of Roe and Casey as many have suggested.

Sotoymayor is still talking. She must think she is talking to someone, but I don't know who? Maybe Barrett?

Here comes Barrett. She wants to know if Griswold is safe. But I can't tell if she's asking that because she thinks it wouldn't be.

I'm pretty comfortable that Barrett doesn't want to touch Griswold and Obergefell,etc. So is she saying - I can't do what you want because it would endanger those? Or trying to persuade her colleagues this is limited?

Still nothing from Kavanaugh. The big question I have - does he pick up on Roberts' point about viability. If he does, you can easily imagine that is the controlling plurality. 3 affirm Roe as is. 2 on this. 4 to overturn Roe.

Pointless talking from Alito. We know what he thinks and he is unpersuasive to anyone who matters.

That's not a knock on Alito. Just a description of the dynamics here.

Kagan now giving a speech about stare decisis, it seems to me, talking to CJR and Kavanaugh, I would guess.

The Chief is back on viability, pointing out that was the only issue presented. Again, to me this is very important, maybe the only important thing I have heard.

The Chief continues to try to craft (it seems to me) a narrow decision on viability.

Now, the Chief is pressing on stare decisis, pointing out that if Roe falls, there are a lot of cases that have to be overturned.

Kagan now responding to CJR's viability points by "asking" Mississippi how that would work.

This is very much Kagan telling CJR that his idea doesn't work (to me).

OK, Kavanaugh. He asks about whether the constitution bars abortion (the more extreme pro-life position).

Barrett asks a question on stare decisis, which I think is where she will be thinking hard.

She has previously said a case was probably wrong but shouldn't be overruled because she wasn't sure what the replacement would be (in a religious freedom case). Maybe something here troubling her too. Can't tell.

CJR asks whether the difference between a 15 week standard and a viability standard would set women back the same way overruling Roe entirely would.

Again, he is showing his hand very clearly to me. Whether he has a buyer on the right is the question.

But at the moment he does not seem interested in simply affirming Roe and Casey as they currently are understood.

Barrett asking essentially about adoption. She's trying to tease out the burdens of pregnancy from the burdens of parenthood.

I.e., if Roe was about the burden of parenthood, why doesn't adoption solve the problem?

Gorsuch is sort of saying, "why don't we apply undue burden before viability?" Partly to make counsel say that's no good, in my view.

And here's Alito to capitalize on that. The argument Gorsuch and Alito are making is - the pro-choice side says it's all or nothing. CJR's middle line doesn't work - not even the pro-choice wants it. So it has to be all.

So both Kagan and Gorsuch/Alito are telling CJR that his proposal doesn't work. But it may end up being the holding.

CJR continues to plow the "let's change Casey/Roe ground."

Breyer responding to CJR's points about stare decisis.

Wait, did Thomas say that Loving come out of Lochner?

Easily possible I misunderstood what he means.

OK, here's Kavanaugh again. He's back on the constitution being "neutral" on abortion. Which doesn't sound like he's biting on CJR's middle ground.

This is the second most important thing that has been said today. Kavanaugh is trying to portray reversing Roe and Casey to a return to neutrality on abortion.

Now Kavanaugh is talking about stare decisis and talking about Brown v. Board and Baker v. Carr. Again, these are comments that suggest he thinks the the stare decisis interests are not that strong.

Barrett is now talking CJR's viability line. So maybe she's the most likely buyer of his theory. She's basically saying "why viability - what does that have to do with anything" if you strip out stare decisis.

So now SG Prelogar is up. I'm not sure what else is there to say. We have another Sotomayor speech (this one directly responds to Kavanaugh's speech about stare decisis).

I don't get Breyer's plea to read Casey's stare decisis analysis "with care." He's said it 3 times.

Alito being snippy about Plessy.

"The South built up a society of white supremacy relying on Plessy" he says.

Kagan just gives Prelogar the floor to talk about women's reliance interest on Roe.

Sotomayor gives Prelogar the floor to say why contraceptives are not good enough.

As I said maybe 15 tweets ago, there's no much left to say, so the "liberal" justices are just giving Prelogar softballs so she can talk.

CJR now begging Prelogar to say we can change viability as the line.

He wants Prelogar to say that works so he can sell it to someone on the right. This is completely obvious.

Now, it might be that is completely unacceptable to Prelogar and the forces on that side. So both advocates have resisted. But CJR is frustrated.

Gorsuch comes in to again exploit this cleavage. "If we reject viability, is there any other line?"

Again, he's trying to say, if there's no line, CJR, why don't we just overturn all of Roe and Casey.

Kavanaugh doing the "other side would say" question, but that's just what he thinks.

And we're back to Kavanaugh's neutrality point. "Why isn't that the right answer" he says?

Barrett on her attempt to say that the burdens of pregnancy are one thing, and the burdens of parenting are another. She accepts the former, but not the latter, because of adoption.

Well, it's done. The argument was extremely illuminating on what the judges think. To me, Barrett and CJR are in play. Everyone else is firmly on one side or another.

Now it goes into the dark art of crafting an opinion that gets 5. There will be an opinion that says Roe and Casey are wrong and were always wrong. At least 3 will join that. There will be an opinion that says they were always right. 3 will join that.

Kavanaugh sounds like he will join the 3 who say it is wrong with an opinion that says he is doing nothing but restoring neutrality.

And then there will be one more opinion from CJR that says viability was never what Roe protected. Whether it gets Barrett, I don't know.

That's all tea leaf reading. All the usual caveats apply. But this case is unusual. I think the judges basically said what they thought, and Barrett was the only real puzzle. She thinks Roe is wrong. What she thinks replaces it, who knows.

You can submit this tweet to cold takes when I turn out to be wrong in June.

One last thing. A totally different dynamic in a 5-4 court where Roberts is the center. Night and day.