Mark Joseph Stern Profile picture
Dec 1, 2021 13 tweets 4 min read Read on X
Sotomayor says the sponsors of Mississippi's 15-week abortion ban said "we're doing it because we have new justices."

She asks: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?"
Chief Justice Roberts suggests that the bright-line rule established in Roe and Casey—no total abortion bans before fetal viability—was completely arbitrary. It sounds to me like he is ready to abolish the viability line.
After Sotomayor suggests that overturning Roe would imperil other precedents protecting contraception and gay rights, Barrett asks if the court could overrule Roe in a way that preserves those precedents. Sounds like she's preemptively saying: Roe is dead, but those are safe.
Barrett and Kavanaugh's softball questions to the Mississippi solicitor general suggests to me that both of them are prepared to overrule Roe v. Wade—while saying (1) other precedents (same-sex marriage, contraception) are safe, and (2) the court won't mandate abortion bans.
This is a ridiculous question from Kavanaugh. No one thinks Mississippi is arguing that the Supreme Court must mandate abortion bans.

Kavanaugh is moving the Overton Window. He's telling the public: "We won't force states to allow abortion OR ban abortion—we're so moderate!"
Kavanaugh is using these arguments to claim that "returning abortion to the states" is the new middle ground. I think this is pretty clearly over. There are obviously five votes to overturn Roe v. Wade.
Roberts is floating a compromise that allows abortion bans at 15 weeks (or perhaps earlier) but preserves the right early in pregnancy. But I don't hear any takers. Barrett and Kavanaugh do not sound remotely interested.
This question from Amy Coney Barrett is basically game over for Roe. She says: Now that all 50 states have "safe haven" laws that let women relinquish parental rights after birth, the burdens of parenthood discussed in Roe and Casey are irrelevant, and the decisions are obsolete.
More from Barrett: "Actually, as I read Roe and Casey, they don't talk very much about adoption. It's a passing reference that means out of the obligations of parenthood." She's adopting Mississippi's argument that the availability of adoption obviates the need for abortion.
Kavanaugh is doing the thing where he summarizes his own position while attributing it to "the other side."

"The court has been forced ... to pick sides in the most contentious social debate in American life ... [but] the Constitution is neutral on the question of abortion."
Kavanaugh says some of the important cases in history overruled precedent.

"If we think that the prior precedents are seriously wrong ... why then doesn't the history of this court's practice ... tell us that the right answer is actually a return to the position of neutrality?"
Kavanaugh is saying that some of the Supreme Court's most celebrated decisions overruled precedent, and overruling Roe and Casey will deserve celebration because it restores the court's "neutrality" and returns the abortion debate to the states and Congress.
The case is submitted. The Supreme Court will overturn Roe v. Wade in June 2022. Half the states will have complete or near-total bans on abortion within six months.

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More from @mjs_DC

Oct 31
The seamless expansion of same-day registration to so many states proves that there is no legitimate reason to cut off voter registration before Election Day, let alone a full month before. Registration deadlines are just a pretext to prevent less engaged citizens from voting.
In many states, you can walk up to the polls on Election Day, register to vote, and cast your ballot. In other states, you have to register up to a full month before Election Day. The only difference is that the first group of states wants people to vote and the second does not.
Same-day registration also protects voters against administrative errors and unlawful purges that cancel their active status shortly before an election. In Virginia, for instance, citizens wrongfully purged by Youngkin can re-register at the polls through Election Day.
Read 4 tweets
Oct 25
NEW: A far-right panel of the 5th Circuit rules that it is *illegal* for states to count ballots that arrive shortly after Election Day but are postmarked by Election Day.

18 states + D.C. count these ballots. This decision would shred those laws. s3.documentcloud.org/documents/2525…
BUT: The 5th Circuit decision only applies to Mississippi, the one state within the circuit that counts ballots received after Election Day.

The 5th Circuit is trying to tee up a Supreme Court decision to strike down ballot laws in many other states, too. s3.documentcloud.org/documents/2525…
The 5th Circuit declined to issue a preliminary injunction against Mississippi's law, but declared it illegal and ordered the district court to issue an appropriate remedy. Nobody knows what that will look like! Confusion will now reign. s3.documentcloud.org/documents/2525…
Read 4 tweets
Jul 2
NEW: The Supreme Court sends a whopping EIGHT Second Amendment cases back to the lower courts for reconsideration in light of its decision in Rahimi.

Much more in today's giant orders list: supremecourt.gov/orders/courtor…
The Supreme Court also sends NINE Chevron cases back down to the lower courts for reconsideration in light of Loper Bright. The disruption officially begins: supremecourt.gov/orders/courtor…
The Supreme Court vacates an 8th Circuit decision that had granted North Dakota lawmakers a "legislative privilege" from discovery in an important Native redistricting case, agreeing with the plaintiffs that the dispute has become moot. (KBJ dissents.) supremecourt.gov/orders/courtor…
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Read 12 tweets
Jul 1
🚨The Supreme Court rules that President Trump has "absolute immunity" from criminal prosecution for all "official acts" he took while in office. The vote is 6–3 with all three liberals dissenting. supremecourt.gov/opinions/23pdf…
Sotomayor, dissenting: Today's decision shields presidents from prosecution "for criminal and treasonous acts" and "makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law." supremecourt.gov/opinions/23pdf…
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Sotomayor, joined by Kagan and Jackson, closes: "With fear for our democracy, I dissent." supremecourt.gov/opinions/23pdf…
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Read 6 tweets
Jul 1
The Supreme Court's second decision is NetChoice. Justice Kagan's complicated opinion for the court remands both cases to the appeals courts for the proper analysis of a First Amendment facial challenge, which, she says, they flunked the first time. supremecourt.gov/opinions/23pdf…
HOWEVER: Kagan's opinion for the court holds that content moderation IS "expressively activity" and that social media platforms ARE protected by the First Amendment, no matter their size, from state intrusion. That's a major holding. supremecourt.gov/opinions/23pdf…
Kagan says social media platforms engage in protected speech when moderating content posted by third parties, and Texas' alleged interest in interfering with that practice amounts to the "suppression of free expression, and it is not valid" under the First Amendment.
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Read 4 tweets
Jul 1
The Supreme Court's first decision is Corner Post. By a 6–3 vote, the majority allows plaintiffs to challenge an agency action LONG after it has been finalized. All three liberals dissent. supremecourt.gov/opinions/23pdf…
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This article explains why today's outcome in Corner Post will be so destabilizing to the administrative state—it means that agency actions are never really safe from legal assault, even decades after they're finalized. It's a really big deal. americanprogress.org/article/corner…
In her dissent, Justice Jackson urges Congress to enact a new law to "forestall the coming chaos" created by today's decision, reimposing the statute of limitations that had, until now, prevented new plaintiffs from endlessly challenging regulations. supremecourt.gov/opinions/23pdf…
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Read 7 tweets

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