Speaker 1: Pushkin. Hey, they're Deep Background listeners. It's Noah Feldment. Every
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Speaker 1: Deep Background via Pushnik, the new subscription program you'll find
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Speaker 1: it's the upcoming challenge to Rov Wade or decisions about
Speaker 1: juvenile offenders and life imprisonment. I will try to explain
Speaker 1: the inner workings of the Court to you and connect
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Speaker 1: first in that Nowhere Riff series about how a major
Speaker 1: case on abortion rights is making its way to a
Speaker 1: landmark hearing before the Justices. When the case is heard
Speaker 1: in the coming fall, it will be a direct threat
Speaker 1: to the fundamental right to abortion and trying to Row v. Wade.
Speaker 1: It's going to be major, and I hope my observations
Speaker 1: help you understand how it's all taking place. Pushkin Welcome
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Speaker 1: this in your fee, and you can always listen to
Speaker 1: Pushkin shows ad free from Pushkin Industry. Is This is
Speaker 1: Deep Background, the show where we explore the stories behind
Speaker 1: the stories in the news. I'm Noah Feldman today a
Speaker 1: special bonus episode, the first in a series of bonus
Speaker 1: episodes exploring the inner workings of the US Supreme Court.
Speaker 1: Why it does what it does, how it does what
Speaker 1: it does, and how the why and the how connect.
Speaker 1: In late May, the Supreme Court announced that sometime in
Speaker 1: the fall, it will hear argument in a case called
Speaker 1: Dabbs against Jackson Women's Health Organization. Their Justice has said
Speaker 1: yesterday they will decide if a new law in Mississippi
Speaker 1: is constitutional. It would impose the strictest state limits on
Speaker 1: abortion since the Roe versus Wade decision forty eight years ago.
Speaker 1: Jan Crawford is at the Supreme Court that case name
Speaker 1: may not mean anything to you now, but I promise
Speaker 1: you it is going to at issue twenty eighteen Mississippi
Speaker 1: law that would ban almost all abortions after fifteen weeks
Speaker 1: of pregnancy. The law, as written directly contradicts the core
Speaker 1: holding of Roe v. Wade, Good Evening, in a landmark ruling,
Speaker 1: the Supreme Court today legalized abortions the majority in cases
Speaker 1: from Texas and Georgia's. As you recall, in a Rovuwade,
Speaker 1: the Supreme Court held that a state lacks the legal
Speaker 1: authority to prohibit abortion before what the court called viability.
Speaker 1: That is, the moment when a fetus could survive with
Speaker 1: or without medical assistance outside the womb. The date of
Speaker 1: viability is usually thought to be twenty three to twenty
Speaker 1: four weeks. That means fully eight or nine weeks after
Speaker 1: the time that the Mississippi law would already prohibit abortions
Speaker 1: from occurring. Now, after the state of Mississippi paw that law.
Speaker 1: Challengers immediately went to federal court, and in due time
Speaker 1: the US Court of Appeals for the Fifth Circuit struck
Speaker 1: down the law because bluntly it violated Roe v. Wade.
Speaker 1: The reason everyone will be talking about this case is that,
Speaker 1: in an ordinary course of business, the Supreme Court doesn't
Speaker 1: agree to review decisions where it knows that the Court
Speaker 1: of Appeals got the issue right and when there's no
Speaker 1: controversy among different courts of appeals about what the state
Speaker 1: of the law is. In this instance, we know there's
Speaker 1: no controversy among different courts of appeal. The rule of
Speaker 1: Roe v. Wade is clear, and the lower courts have
Speaker 1: not been flouting Supreme Court precedent. That means that if
Speaker 1: the Supreme Court decided to hear the case, it must
Speaker 1: be that some number of justices believe that the time
Speaker 1: has come to undercut and maybe even overturn the cent
Speaker 1: role holding of Row. So what can we say about
Speaker 1: how the Supreme Court justices are thinking? How can we
Speaker 1: read the tea leaves? Now? Usually when you think about
Speaker 1: the Supreme Court, only one number matters, and that number
Speaker 1: is five. Five is a number of justices. It takes
Speaker 1: to get a majority of the court and to win
Speaker 1: your case. But when it comes to the Supreme Court
Speaker 1: deciding to hear a case, the number shifts from five
Speaker 1: to four. Here is what is called by Supreme Court
Speaker 1: insiders the rule of four. The rule of four says
Speaker 1: that it takes the vote of four Supreme Court justices,
Speaker 1: not five, to decide to hear a case. So, if
Speaker 1: in the Justices conference, which is what they call their
Speaker 1: meetings to discuss what cases they're going to take and
Speaker 1: what to do about the cases they have, the Supreme
Speaker 1: Court justices vote on whether to take a case, it
Speaker 1: takes four justices. If four justices say they want to
Speaker 1: hear the case, the case gets hurt. So what does
Speaker 1: that tell you? When the news comes out that the
Speaker 1: Supreme Court has decided to hear a case, it tells you,
Speaker 1: at minimum that four justices wanted the Court to hear it. Now,
Speaker 1: as it turns out, there's more information that is available
Speaker 1: to the general public to figure out when and why
Speaker 1: the Supreme Court made a decision like this, and that
Speaker 1: information lies in the Court's docket. The otherwise dry as dust,
Speaker 1: entirely boring list that tells you on what date, what
Speaker 1: event happened with respect to a Supreme Court decision. Now,
Speaker 1: in the case of Dabs against Jackson Women's Health, a
Speaker 1: close look at the docket reveals that this case first
Speaker 1: came before the justices in the early summer of two
Speaker 1: thousand and twenty. That time matters because at that time
Speaker 1: Justice Ruth Bader Ginsburg was still alive and the conservative
Speaker 1: justices on the Court were unable to be certain that
Speaker 1: they would or would not be able to get five
Speaker 1: votes to over turn some core holding of Roe v. Wade. Then,
Speaker 1: if you look at the docket, you can see that
Speaker 1: the Supreme Court began a series of delaying processes and tactic.
Speaker 1: The first time the Supreme Court justices could realistically have
Speaker 1: sat down in conference and had a discussion about whether
Speaker 1: they should hear this case was September twenty nine, twenty twenty.
Speaker 1: We know that because in the docket we know that
Speaker 1: on September second, the materials for the case were distributed
Speaker 1: and planned for the September twenty nine conference. But on
Speaker 1: September eighteen, twenty twenty eleven, days before the case was
Speaker 1: supposed to be discussed at conference, Justice Ginsburg passed away
Speaker 1: the Court consequently, at less than full strength, decided to
Speaker 1: reschedule its discussion of the case, and it did that
Speaker 1: several times. First it was rescaleded for October fifth, then
Speaker 1: October fourteenth, then October twenty ninth, then November fourth. While
Speaker 1: all of this was happening, the country was focused on
Speaker 1: the nomination of Amy Coney Barrett to replace Kinsburg and
Speaker 1: ultimately her confirmation, which took place on October twenty seven.
Speaker 1: The Yeasier fifty two the Naser forty eight, the nomination
Speaker 1: of Amy Coney Barrett of Indiana to be an Associate
Speaker 1: Justice of the Supreme Court of the United States is confirmed.
Speaker 1: Looking back to the docket, the Court still did not
Speaker 1: decide whether to hear the case. They rescheduled again November tenth,
Speaker 1: November eighteenth, December one, December nine, and then they began
Speaker 1: scheduling conversation to take place each month in January, in February,
Speaker 1: in March, in April, and finally, finally, finally, on May
Speaker 1: seventeenth of twenty twenty one, after Justice Barrett had been
Speaker 1: on the court for several months, the Court sided to
Speaker 1: hear the case. Two insiders who spend their time trying
Speaker 1: to read the tea leaves and see what the Supreme
Speaker 1: Court is going to do. These docket lists are telling
Speaker 1: pieces of evidence. What they tell you here is that
Speaker 1: the Conservative justices, who have to be the ones open
Speaker 1: to hearing this case, we're caucusing among themselves, discussing with
Speaker 1: each other and trying to figure out if they had
Speaker 1: the votes to make a credible attempt to chip away
Speaker 1: or overturn the holding in Row. How do we know that? Well,
Speaker 1: we know it because it would be a disaster from
Speaker 1: the perspective of the Conservative justices if the Supreme Court
Speaker 1: were to hear a case in which the core holding
Speaker 1: of Rowe view Wade was challenged by a state law
Speaker 1: and then uphold the law. Really, for two generations of
Speaker 1: legal conservatism, Rowe has been a central target, and any
Speaker 1: reaffirmation of the holding of Row is a massive setback, indeed,
Speaker 1: potentially a generational setback for those Conservatives. That means that
Speaker 1: the Conservatives would not even consider hearing a case like
Speaker 1: this unless they had a growing degree of confidence that
Speaker 1: they could get five votes minimum that would substantially undercut
Speaker 1: the holding of Row. How would they do so? Well,
Speaker 1: here we have one further clue, and that's a clue
Speaker 1: derived from the way the Supreme Court justices said they
Speaker 1: would hear the case. When the parties came before the
Speaker 1: Supreme Court seeking review, they wanted the Supreme Court to
Speaker 1: consider a range of questions, but the justices narrowed it
Speaker 1: down to a single question, and here's what they said.
Speaker 1: The Court will decide, quote, whether all pre viability prohibitions
Speaker 1: on elective of worsens are unconstitutional. That is a question that,
Speaker 1: if it were to be answered yes, would be a
Speaker 1: major setback to the Conservatives, And so the Conservatives must
Speaker 1: believe that they can get at least five votes and
Speaker 1: maybe more to shift the Supreme Court's view on that question.
Speaker 1: There is a tiny possibility that the Conservatives just have
Speaker 1: it wrong and that four justices will be unable to
Speaker 1: convince one further justice to substantially undercut the holding of Row,
Speaker 1: But that seems very, very very implausible given the deliberation
Speaker 1: and the time that went into the process of the
Speaker 1: Supreme Court deciding to hear the case. Here. We'll be
Speaker 1: talking more about the legal details of this case in
Speaker 1: this coming year on deep background. For now, I'm hoping
Speaker 1: you can see just how much information can be gleaned
Speaker 1: from the inside Baseball in the weeds analysis of how
Speaker 1: the Court comes to reach decisions. Until the next time
Speaker 1: I speak to you here on deep background, be safe
Speaker 1: and be well. That's all for today, Pushnicks. Thanks for
Speaker 1: your support and watch your feed for additional bonus content.