The hastily drafted legal orders filed last week hint at where arguments are likely to go, both in the case of Texas and in the upcoming December Mississippi Abortion Act, which is more directly focused Roe v. Wade. But Monday’s cases could also lead the court in unexpected directions, raising questions about whether and how states can protect their laws from judicial scrutiny.
Here are five things to watch (or listen to!) As judges examine in depth the law that has intensified the already wild debate on abortion:
1. Do the judges turn to Roe against Wade?
Monday’s arguments could only end strictly on the legal consequences if Texas enforces its abortion ban with lawsuits filed by private individuals instead of the government, but don’t count on it.
The arguments in the Mississippi lawsuit, which is said to be the Supreme Court’s only success on abortion during this term, are only a month away, so advocates on both sides will pay close attention to any comments from judges offering tea lists on whether the court open to the destruction of the framework it adopted almost half a century ago Roe deer. v. Wade.
“The language they use could be revealing in the sense of indicating whether they have any concerns about threats Roe deer or or Roe deer is a good law, ”said Georgetown law professor Caroline Fredrickson, a former president of the American Constitutional Society.
Based on their written orders, the judges appear to have ruled out excluding themselves in one of the two cases to be heard on Monday in order to delve into the content of the abortion precedent: the challenge filed by the Ministry of Justice, then when Texas law came into force. Arguments in this case are expected to focus on whether the federal government has grounds to sue in these circumstances.
But the court’s opinion on what’s at stake in another case filed by abortion practitioners in Texas is more vague.
“The key question is whether judges are investigating the constitutionality of the abortion regulation or just the interesting procedural-jurisdictional issues involved in the case,” said Stanford law professor Michael McConnell, a former U.S. District Court of Appeals judge. .
2. What will Chief Justice Roberts do?
John Roberts attracted a lot of attention in September when he broke up with his fellow Republicans and joined the Liberal Court. dissenting judges when the court refused to block the validity of Texas law. But lawyers say that is no guarantee of where the chief justice will now come from.
In his previous opinion, which referred to the abortionists’ request for an emergency order, he said he wanted to maintain the “previous status quo,” meaning he wanted to maintain the situation on the ground in Texas before the law was passed until it was resolved. litigation.
But judges now seem willing to contend with the legal merits of the statute, so the factors Roberts and others may take into account are different.
“I hope that because it’s not about maintaining the status quo now, it’s about what the law says – that it will now focus on what the law says,” said James Bopp, general adviser on the national right to life.
Another open question is how much influence Roberts has with his colleagues now that he no longer has the power to turn the court around in closely divided cases. Other judges, especially the newly appointed ones, usually show respect to the chief. But how far does this go?
“It used to be a lot more important,” Fredrickson said. “We don’t really know … but how this current court will approach his recommendations – or perhaps requests – not to go in a radical direction.”
3. Can abortion advocates convince another right to swing?
While Roberts seemed to have hinted that his voice was at play when he sided with the Judicial Liberals two months ago, abortion rights advocates and the Biden administration will have to get at least one more judge to appoint him. GOP to prevail over Texas law.
Lawyers on both sides look most intensely at referees Brett Kavanaugh, Amy Coney Barrett and to a lesser extent Neil Gorsuch as the voices most likely to be in the game.
“I would always look to younger judges, the most recent ones appointed because they have no experience,” Bopp said.
As a DC District Judge, Kavanaugh tried to play a peacemaker on abortion issues. Barrett’s anti-abortion academic writings and Catholic religious views became the focus of her affirmative hearings, but her voices about cases of religious freedom related to the coronavirus pandemic were mixed.
Judge Clarence Thomas, who was called Roe v. Wade “farcical” and said it “has no basis in the constitution,” seems a reliable vote in favor of allowing Texas law to remain in the books.
Abortion rights advocates also see little chance of convincing Judge Samuel Alita who gave a tumultuous speech in September and attacked the press for his “false and incendiary” reporting to the court, including the decision to allow Texas law to take effect.
4. Does the “horror parade” prove convincing?
A key strategy for abortion rights advocates is to point out that the blessing of a privately owned Texas abortion law will have an infectious effect, resulting not only in a series of similar abortion laws in other states, but also statutes focusing on to constitutionally protected freedoms that many conservatives value – such as the right to bear arms.
“If Texas avoids this ploy, the constitutional right to abortion will be the first, but certainly not the last target of states that refuse to pass a federal law they disagree with,” the abortion clinics claim.
Roberts seems to support this concern in his previous disagreement and warns that Texas law will become a “model for action in other areas”.
Some lawyers have discussed how the Texas approach could be used to allow private lawsuits against gun manufacturers, including people not directly affected by the violence, or to give private actors the power to effectively veto the expansion of religious institutions.
“Maybe Thomas, Alito or Gorsuch will breathe and say,‘ Oh my god, will they make it? ’” Fredrickson said.
Nonetheless, some argue about how new the Texas approach is, as some states have allowed the enforcement of a “private Attorney General” in areas such as the environment for decades.
“It exists out there in the legal environment everywhere,” Bopp said.
5. In what haste are the judges?
The Supreme Court often takes months to prepare opinions – sometimes even nine months in contentious cases. But a lightning-fast schedule for Monday’s hearings – just 10 days after the court agreed to hear them – shows that most judges are in a hurry to address issues raised by the Texas statute.
Nevertheless, since the Mississippi case has been hidden for only a month, the speed with which the court can prepare and publish its opinion or opinions could be important. A verdict before Dec. 1 that goes beyond the bare bones of Texas law in any way could affect how advocates and even judges approach the arguments in the Mississippi abortion case.
However, if judges are unable to express their opinions by then, which could require hard work for their officials during Thanksgiving, the ruling in Texas may be adjourned as the court tries to eliminate the friction points stemming from arguments and initial deliberations. on the Mississippi case.