WEBVTT - Introducing…Noah Riffs 0:00:15.356 --> 0:00:22.076 Pushkin. Hey, they're Deep Background listeners. It's Noah Feldment. Every 0:00:22.116 --> 0:00:24.996 other week, I'm going to be releasing bonus episodes of 0:00:25.076 --> 0:00:29.116 Deep Background via Pushnik, the new subscription program you'll find 0:00:29.156 --> 0:00:33.356 on Apple podcasts. We're calling these episodes Noah Riffs, and 0:00:33.476 --> 0:00:36.356 many of them will focus on the Supreme Court, whether 0:00:36.396 --> 0:00:39.956 it's the upcoming challenge to Rov Wade or decisions about 0:00:40.036 --> 0:00:43.356 juvenile offenders and life imprisonment. I will try to explain 0:00:43.396 --> 0:00:46.116 the inner workings of the Court to you and connect 0:00:46.156 --> 0:00:50.036 the wise and the house behind every move. I'll also 0:00:50.116 --> 0:00:53.236 touch on other developments in the news, like most recently, 0:00:53.436 --> 0:00:57.076 the shifting power structure in Israel. When you subscribe to 0:00:57.116 --> 0:00:59.636 pushnik for four ninety nine a month, you'll get bonus 0:00:59.716 --> 0:01:03.436 content like Noah Riffs, as well as uninterrupted listening across 0:01:03.476 --> 0:01:07.436 fourteen shows in the Pushkin industry's catalog, including Malcolm Gladwell's 0:01:07.476 --> 0:01:11.716 Revisionist History and Jill Lapour is the last archive. Search 0:01:11.756 --> 0:01:15.036 for Deep Background and Apple podcasts. Visit our show page 0:01:15.156 --> 0:01:18.076 and sign up there. It's easy and you can try 0:01:18.076 --> 0:01:20.996 it free for seven days. You're about to hear the 0:01:21.076 --> 0:01:24.276 first in that Nowhere Riff series about how a major 0:01:24.356 --> 0:01:27.676 case on abortion rights is making its way to a 0:01:27.796 --> 0:01:31.436 landmark hearing before the Justices. When the case is heard 0:01:31.716 --> 0:01:34.996 in the coming fall, it will be a direct threat 0:01:35.196 --> 0:01:38.196 to the fundamental right to abortion and trying to Row v. Wade. 0:01:38.676 --> 0:01:41.996 It's going to be major, and I hope my observations 0:01:42.236 --> 0:01:57.116 help you understand how it's all taking place. Pushkin Welcome 0:01:57.116 --> 0:02:00.756 Pushnick subscribers. This bonus episode of a Deep Background is 0:02:00.756 --> 0:02:05.796 exclusively available to you on Apple Podcasts subscriptions. Thanks for 0:02:05.916 --> 0:02:08.516 being a Pushnick. You'll see a more bonus content like 0:02:08.556 --> 0:02:10.796 this in your fee, and you can always listen to 0:02:10.876 --> 0:02:16.516 Pushkin shows ad free from Pushkin Industry. Is This is 0:02:16.596 --> 0:02:20.076 Deep Background, the show where we explore the stories behind 0:02:20.236 --> 0:02:24.316 the stories in the news. I'm Noah Feldman today a 0:02:24.356 --> 0:02:27.676 special bonus episode, the first in a series of bonus 0:02:27.676 --> 0:02:31.676 episodes exploring the inner workings of the US Supreme Court. 0:02:32.236 --> 0:02:34.876 Why it does what it does, how it does what 0:02:34.956 --> 0:02:37.516 it does, and how the why and the how connect. 0:02:41.876 --> 0:02:45.076 In late May, the Supreme Court announced that sometime in 0:02:45.076 --> 0:02:48.116 the fall, it will hear argument in a case called 0:02:48.236 --> 0:02:53.196 Dabbs against Jackson Women's Health Organization. Their Justice has said 0:02:53.276 --> 0:02:55.916 yesterday they will decide if a new law in Mississippi 0:02:56.076 --> 0:02:59.636 is constitutional. It would impose the strictest state limits on 0:02:59.676 --> 0:03:02.796 abortion since the Roe versus Wade decision forty eight years ago. 0:03:03.236 --> 0:03:06.036 Jan Crawford is at the Supreme Court that case name 0:03:06.156 --> 0:03:08.476 may not mean anything to you now, but I promise 0:03:08.516 --> 0:03:13.396 you it is going to at issue twenty eighteen Mississippi 0:03:13.436 --> 0:03:16.836 law that would ban almost all abortions after fifteen weeks 0:03:16.836 --> 0:03:22.076 of pregnancy. The law, as written directly contradicts the core 0:03:22.236 --> 0:03:26.756 holding of Roe v. Wade, Good Evening, in a landmark ruling, 0:03:26.796 --> 0:03:31.396 the Supreme Court today legalized abortions the majority in cases 0:03:31.436 --> 0:03:34.636 from Texas and Georgia's. As you recall, in a Rovuwade, 0:03:34.716 --> 0:03:38.156 the Supreme Court held that a state lacks the legal 0:03:38.156 --> 0:03:44.316 authority to prohibit abortion before what the court called viability. 0:03:44.436 --> 0:03:47.796 That is, the moment when a fetus could survive with 0:03:48.076 --> 0:03:52.116 or without medical assistance outside the womb. The date of 0:03:52.196 --> 0:03:55.596 viability is usually thought to be twenty three to twenty 0:03:55.636 --> 0:04:01.076 four weeks. That means fully eight or nine weeks after 0:04:01.356 --> 0:04:05.356 the time that the Mississippi law would already prohibit abortions 0:04:05.396 --> 0:04:09.756 from occurring. Now, after the state of Mississippi paw that law. 0:04:10.276 --> 0:04:14.316 Challengers immediately went to federal court, and in due time 0:04:14.796 --> 0:04:18.116 the US Court of Appeals for the Fifth Circuit struck 0:04:18.156 --> 0:04:21.876 down the law because bluntly it violated Roe v. Wade. 0:04:23.756 --> 0:04:26.596 The reason everyone will be talking about this case is that, 0:04:26.836 --> 0:04:30.036 in an ordinary course of business, the Supreme Court doesn't 0:04:30.076 --> 0:04:33.556 agree to review decisions where it knows that the Court 0:04:33.556 --> 0:04:36.716 of Appeals got the issue right and when there's no 0:04:36.876 --> 0:04:40.676 controversy among different courts of appeals about what the state 0:04:40.716 --> 0:04:44.756 of the law is. In this instance, we know there's 0:04:44.796 --> 0:04:47.956 no controversy among different courts of appeal. The rule of 0:04:48.076 --> 0:04:51.076 Roe v. Wade is clear, and the lower courts have 0:04:51.276 --> 0:04:57.276 not been flouting Supreme Court precedent. That means that if 0:04:57.316 --> 0:05:00.076 the Supreme Court decided to hear the case, it must 0:05:00.156 --> 0:05:03.836 be that some number of justices believe that the time 0:05:03.916 --> 0:05:08.916 has come to undercut and maybe even overturn the cent 0:05:09.196 --> 0:05:13.476 role holding of Row. So what can we say about 0:05:13.516 --> 0:05:16.636 how the Supreme Court justices are thinking? How can we 0:05:16.676 --> 0:05:20.156 read the tea leaves? Now? Usually when you think about 0:05:20.156 --> 0:05:23.316 the Supreme Court, only one number matters, and that number 0:05:23.476 --> 0:05:26.556 is five. Five is a number of justices. It takes 0:05:26.556 --> 0:05:28.676 to get a majority of the court and to win 0:05:28.956 --> 0:05:31.636 your case. But when it comes to the Supreme Court 0:05:31.676 --> 0:05:35.916 deciding to hear a case, the number shifts from five 0:05:36.156 --> 0:05:39.076 to four. Here is what is called by Supreme Court 0:05:39.076 --> 0:05:42.356 insiders the rule of four. The rule of four says 0:05:42.436 --> 0:05:45.436 that it takes the vote of four Supreme Court justices, 0:05:45.996 --> 0:05:50.076 not five, to decide to hear a case. So, if 0:05:50.276 --> 0:05:53.516 in the Justices conference, which is what they call their 0:05:53.636 --> 0:05:56.236 meetings to discuss what cases they're going to take and 0:05:56.356 --> 0:05:58.916 what to do about the cases they have, the Supreme 0:05:58.956 --> 0:06:01.676 Court justices vote on whether to take a case, it 0:06:01.716 --> 0:06:04.876 takes four justices. If four justices say they want to 0:06:04.876 --> 0:06:08.156 hear the case, the case gets hurt. So what does 0:06:08.196 --> 0:06:10.076 that tell you? When the news comes out that the 0:06:10.076 --> 0:06:12.836 Supreme Court has decided to hear a case, it tells you, 0:06:12.956 --> 0:06:18.396 at minimum that four justices wanted the Court to hear it. Now, 0:06:18.436 --> 0:06:21.796 as it turns out, there's more information that is available 0:06:22.076 --> 0:06:24.636 to the general public to figure out when and why 0:06:24.676 --> 0:06:27.876 the Supreme Court made a decision like this, and that 0:06:27.956 --> 0:06:32.836 information lies in the Court's docket. The otherwise dry as dust, 0:06:33.396 --> 0:06:37.156 entirely boring list that tells you on what date, what 0:06:37.196 --> 0:06:41.876 event happened with respect to a Supreme Court decision. Now, 0:06:41.916 --> 0:06:44.716 in the case of Dabs against Jackson Women's Health, a 0:06:44.756 --> 0:06:48.236 close look at the docket reveals that this case first 0:06:48.356 --> 0:06:52.716 came before the justices in the early summer of two 0:06:52.756 --> 0:06:56.916 thousand and twenty. That time matters because at that time 0:06:57.116 --> 0:07:01.396 Justice Ruth Bader Ginsburg was still alive and the conservative 0:07:01.436 --> 0:07:05.076 justices on the Court were unable to be certain that 0:07:05.156 --> 0:07:07.996 they would or would not be able to get five 0:07:08.116 --> 0:07:12.516 votes to over turn some core holding of Roe v. Wade. Then, 0:07:12.596 --> 0:07:14.956 if you look at the docket, you can see that 0:07:14.996 --> 0:07:20.756 the Supreme Court began a series of delaying processes and tactic. 0:07:21.436 --> 0:07:24.316 The first time the Supreme Court justices could realistically have 0:07:24.476 --> 0:07:27.756 sat down in conference and had a discussion about whether 0:07:27.756 --> 0:07:32.916 they should hear this case was September twenty nine, twenty twenty. 0:07:33.396 --> 0:07:35.836 We know that because in the docket we know that 0:07:35.916 --> 0:07:39.956 on September second, the materials for the case were distributed 0:07:40.196 --> 0:07:44.636 and planned for the September twenty nine conference. But on 0:07:44.716 --> 0:07:48.876 September eighteen, twenty twenty eleven, days before the case was 0:07:48.876 --> 0:07:52.676 supposed to be discussed at conference, Justice Ginsburg passed away 0:07:53.156 --> 0:07:57.356 the Court consequently, at less than full strength, decided to 0:07:57.556 --> 0:08:01.116 reschedule its discussion of the case, and it did that 0:08:01.396 --> 0:08:05.556 several times. First it was rescaleded for October fifth, then 0:08:05.596 --> 0:08:11.516 October fourteenth, then October twenty ninth, then November fourth. While 0:08:11.516 --> 0:08:14.316 all of this was happening, the country was focused on 0:08:14.356 --> 0:08:17.876 the nomination of Amy Coney Barrett to replace Kinsburg and 0:08:18.036 --> 0:08:22.756 ultimately her confirmation, which took place on October twenty seven. 0:08:23.316 --> 0:08:27.996 The Yeasier fifty two the Naser forty eight, the nomination 0:08:28.076 --> 0:08:32.316 of Amy Coney Barrett of Indiana to be an Associate 0:08:32.396 --> 0:08:36.316 Justice of the Supreme Court of the United States is confirmed. 0:08:37.396 --> 0:08:40.636 Looking back to the docket, the Court still did not 0:08:40.876 --> 0:08:45.396 decide whether to hear the case. They rescheduled again November tenth, 0:08:45.436 --> 0:08:50.036 November eighteenth, December one, December nine, and then they began 0:08:50.276 --> 0:08:57.036 scheduling conversation to take place each month in January, in February, 0:08:57.476 --> 0:09:02.356 in March, in April, and finally, finally, finally, on May 0:09:02.396 --> 0:09:06.436 seventeenth of twenty twenty one, after Justice Barrett had been 0:09:06.516 --> 0:09:09.636 on the court for several months, the Court sided to 0:09:09.796 --> 0:09:13.916 hear the case. Two insiders who spend their time trying 0:09:13.916 --> 0:09:15.516 to read the tea leaves and see what the Supreme 0:09:15.516 --> 0:09:19.276 Court is going to do. These docket lists are telling 0:09:19.356 --> 0:09:22.756 pieces of evidence. What they tell you here is that 0:09:22.796 --> 0:09:25.916 the Conservative justices, who have to be the ones open 0:09:25.956 --> 0:09:30.076 to hearing this case, we're caucusing among themselves, discussing with 0:09:30.116 --> 0:09:33.916 each other and trying to figure out if they had 0:09:33.996 --> 0:09:37.236 the votes to make a credible attempt to chip away 0:09:37.356 --> 0:09:41.956 or overturn the holding in Row. How do we know that? Well, 0:09:41.996 --> 0:09:44.236 we know it because it would be a disaster from 0:09:44.276 --> 0:09:47.876 the perspective of the Conservative justices if the Supreme Court 0:09:48.036 --> 0:09:51.276 were to hear a case in which the core holding 0:09:51.276 --> 0:09:53.516 of Rowe view Wade was challenged by a state law 0:09:54.076 --> 0:09:59.236 and then uphold the law. Really, for two generations of 0:09:59.756 --> 0:10:04.156 legal conservatism, Rowe has been a central target, and any 0:10:04.316 --> 0:10:08.636 reaffirmation of the holding of Row is a massive setback, indeed, 0:10:08.636 --> 0:10:13.436 potentially a generational setback for those Conservatives. That means that 0:10:13.476 --> 0:10:16.916 the Conservatives would not even consider hearing a case like 0:10:17.036 --> 0:10:20.676 this unless they had a growing degree of confidence that 0:10:20.796 --> 0:10:25.996 they could get five votes minimum that would substantially undercut 0:10:26.196 --> 0:10:30.476 the holding of Row. How would they do so? Well, 0:10:30.636 --> 0:10:33.316 here we have one further clue, and that's a clue 0:10:33.316 --> 0:10:36.236 derived from the way the Supreme Court justices said they 0:10:36.276 --> 0:10:41.516 would hear the case. When the parties came before the 0:10:41.556 --> 0:10:45.156 Supreme Court seeking review, they wanted the Supreme Court to 0:10:45.156 --> 0:10:48.596 consider a range of questions, but the justices narrowed it 0:10:48.596 --> 0:10:51.076 down to a single question, and here's what they said. 0:10:51.436 --> 0:10:55.996 The Court will decide, quote, whether all pre viability prohibitions 0:10:56.396 --> 0:11:01.636 on elective of worsens are unconstitutional. That is a question that, 0:11:01.716 --> 0:11:04.836 if it were to be answered yes, would be a 0:11:04.916 --> 0:11:08.796 major setback to the Conservatives, And so the Conservatives must 0:11:08.836 --> 0:11:11.916 believe that they can get at least five votes and 0:11:11.996 --> 0:11:17.236 maybe more to shift the Supreme Court's view on that question. 0:11:18.236 --> 0:11:22.036 There is a tiny possibility that the Conservatives just have 0:11:22.116 --> 0:11:25.316 it wrong and that four justices will be unable to 0:11:25.316 --> 0:11:29.756 convince one further justice to substantially undercut the holding of Row, 0:11:30.196 --> 0:11:35.276 But that seems very, very very implausible given the deliberation 0:11:35.596 --> 0:11:37.636 and the time that went into the process of the 0:11:37.676 --> 0:11:44.436 Supreme Court deciding to hear the case. Here. We'll be 0:11:44.476 --> 0:11:46.756 talking more about the legal details of this case in 0:11:46.796 --> 0:11:49.716 this coming year on deep background. For now, I'm hoping 0:11:49.716 --> 0:11:52.276 you can see just how much information can be gleaned 0:11:52.676 --> 0:11:56.636 from the inside Baseball in the weeds analysis of how 0:11:56.676 --> 0:12:02.596 the Court comes to reach decisions. Until the next time 0:12:02.636 --> 0:12:05.516 I speak to you here on deep background, be safe 0:12:05.956 --> 0:12:12.756 and be well. That's all for today, Pushnicks. Thanks for 0:12:12.796 --> 0:12:16.116 your support and watch your feed for additional bonus content.