Likely the most significant oral argument in years (Dobbs) is happening right now, and Mississippi's lawyer is already making patently ridiculous arguments:
Right now in Dobbs at 11:22:
You can't read too much in these tea leaves... but it sure sounds like Justice Kavanaugh is practicing, reciting many examples of overturning precedents, and sounding out an opinion (and a 5th vote) to overturn Roe and Casey.
I heard CJ Roberts's questions around 11:05 this morning the same way:
Practcing or signaling a willingness to overturn precedents (i.e., Roe).
With caveat that Justices are often trying out arguments, the tone from Roberts and Kavanaugh seemed a hint against Roe/stare decisis.
FWIW, back in 2018, @Dahlialithwick and I read these tea leaves - and Kavanaugh's own speeches and transcripts in 2017-2018 that signaled his views against Roe, got him onto the @FedSoc shortlist, and ultimately the nomination: slate.com/news-and-polit…
CJ Roberts asks how anyone significantly relies on whether the line is 15 weeks or 24 weeks.
The message is that there is no reliance bright line on any magic number of weeks. His tone is assertive, invoking Ely.
This is an even clearer signal the line will move. Unclear on Roe.
Gorsuch asks if there is any alternative line other than viability.
SG Prelogar gives a good answer: Viability is workable, has been workable for decades, and it's the only workable line.
Kavanaugh keeps trying out arguments against Roe/Casey:
If Constitution is unclear, why not judicial restraint, defer to states... defer to Congress.
Remember that: "Defer to Congress." The only recourse is a reproductive rights statute.
But that's why Roe is key...
If the Court leaves Roe on the books, then there is a basic right to abortion under the 14th Amendment, SECTION 1.
Then Congress can pass a "congruent & proportional" statute to protect that right under the 14th A. SECTION 5.
But if the Court overturns Roe/Casey, no 14th Sec. 5.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
A new paper: “Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism,” Yale J. Law & Humanities, 2022.
I found many errors in unitary executive amicus & scholarship on Blackstone & other historical sources. Thread: papers.ssrn.com/sol3/papers.cf…
2/ I think these errors are in good-faith. This material is complicated, the 18th c. terms are obscure.
But that's the point:
Originalists claim supremacy as the most reliable & objective method, on the eve of overturning Roe/Casey. These errors should give us all pause...
3/ Most of these errors are more than small interpretative errors in a SCOTUS amicus brief.
They often get the big points backwards, such as Blackstone's work as fundamentally contrary evidence against their theory and historical claims. shugerblogcom.wordpress.com/2021/11/30/rem…
"Vesting" updated on @SSRN:
"Vested" in UVA Founding Era Collection, 1776-1789:
My database of over 1000 uses.
Bottom line: The use of "all" in Art I & its absence in Art II both may be significant, in favor of non-delegation but against unitary executive. papers.ssrn.com/sol3/papers.cf…
Thanksgiving is a good time to thank my excellent research assistants Michael Albalah, Anne Brodsky, Xinni Cai, Chloe Rigogne, Emily Rubino, Colin Shea, and Tatum Sornborger.
Thank you!
New short paper:
Countering Gerrymandered Courts: Comment on Miriam Seifter’s "Countermajoritarian Legislatures"
(forthcoming Columbia L.Rev.Online) @MiriamSeifter's article is increasingly crucial on election law & extreme gerrymandering. papers.ssrn.com/sol3/papers.cf…
@MiriamSeifter rightly calls out mistaken assumptions that state legislatures are the democratic branch vs. governors and courts, in an era of extreme gerrymandering vs. state-wide elections.
But the past & future of state judicial elections are also districting & gerrymandering.
3/ As my book The People's Courts showed, state judicial elections emerged in the mid-19th c. with local districts, including state supreme court districts often designed to benefit rural areas or benefit one party.
Many state courts today have the same problem & could get worse.
I'm looking forward to discussing David Driesen's outstanding new book w/ @jennmascott & @narosenblum tomorrow! @dmdriesen's subtitle: "Judicial Enabling of Presidential Power."
My comment: "The Bipartisan Enabling and En-Fabling of Presidential Power"
Michael McConnell and I are excited to announce this conference:
“Histories of Presidential Power”
Constitutional Law Center
@StanfordLaw
Across the ideological and methodological spectrum.
May 20-21: law.stanford.edu/event/spring-c…
Description and list of panels in this post.
Panel 1: How the Presidency Emerged from Colonial, English & Founding Eras @andrewkent33 (Fordham), Michael McConnell (Stanford), @jdmortenson (Michigan), Eric Nelson (Harvard), Maeve Glass (Columbia) shugerblogcom.wordpress.com/2021/11/03/his…
Panel 2: The First Congress & Executive Power: @adityabamzai (UVA), @lmchervinsky (GW, SMU, author The Cabinet: George Washington & the Creation of an American Institution), Mike Ramsey (San Diego), @ilan_wurman (Arizona St), @TheGNapp (Stanford)
Context: I am re-reading Roberts Court decisions to understand how originalists/formalists keep repeating the same historical errors.
By relying on precedent and not actual historical materials, they literally repeat the same errors.
2/ The opening page of Roberts's "historical analysis" in Seila.
1 quote from Madison (who was spinning his own legislative strategy)
1 quote from President Washington in favor of presidential power (surprise.)
Otherwise, 6 citations to Free Enterprise, Bowsher, Hennen & Myers.
3/ Here's the next page of historical evidence about 1787-89:
The 1st paragraph is all from Myers (1926)
The 2d paragraph is Roberts quoting himself in Free Enterprise (2010).
Zero original sources for an originalist argument.