"The justices did find unanimity 45 percent of the time, up two points from last term. They joined together, for instance..."

"... to say a Texas man could not be prosecuted for violating a law banning drug users from gun possession merely because he frequently used marijuana, and they agreed that a New Jersey anti-abortion group could bring a challenge in federal court to government efforts to seek its donor list. There were also examples of ideologically diverse lineups during the term. In a 5-to-4 vote on Monday, Chief Justice Roberts and Justice Amy Coney Barrett joined the court’s three liberals in supporting Mississippi’s grace period for late-arriving mail-in ballots, rejecting a push by the Trump administration to invalidate a state law. Justice Barrett also joined Chief Justice Roberts’ majority opinion this week to uphold birthright citizenship on constitutional grounds. Mr. Trump appointed Justice Barrett to the court in his first term, and her tendency to occasionally rule against his priorities has drawn harsh criticism from the president’s allies. Justice Gorsuch, who has a libertarian streak, also aligned at times with his colleagues on the left, more often than he has in the past.... But even so, a conservative bloc routinely controlled the outcome in cases large and small, with the center of the bench shifting considerably to the right...."

From "Despite Some Losses for Trump, Supreme Court Delivers Enduring Conservative Wins/The justices pushed back on some of President Trump’s signature moves, but they also expanded presidential power and supplied victories on long-sought conservative goals" (NYT).

"I cannot join the Court’s creation of a bespoke standing rule for candidates. Elections are important, but so are many things in life."

Writes Amy Coney Barrett, joined by Elena Kagan, in Bost v. Illinois State Board of Elections, a case issued this morning.

Elections are important, but so are many things in life. We have always held candidates to the same standards as any other litigant.

"Of all the genres of unsatisfying nonfiction, books by Supreme Court Justices may be at the top of the heap."

"One subset is the memoir that focusses on the Justice’s early life, ending before confirmation. Justice Sonia Sotomayor’s 'My Beloved World,' Justice Ketanji Brown Jackson’s 'Lovely One,' and Justice Clarence Thomas’s 'My Grandfather’s Son' are examples. These can be gripping narratives and helpful to understanding a Justice’s formative years, but by definition they omit what readers most want to know: what the Justice did on the Court and why she did it. Another category is the learned disquisition on the law, as in Justice Neil Gorsuch’s 'A Republic, If You Can Keep It' and Justice Stephen Breyer’s 'Reading the Constitution.' These, too, fall short of readers’ hopes, for the simple reason that the authors resist any temptation to rule and tell. They write about their understanding of the law and the judicial process, but when it comes to their dealings with colleagues they remain resolutely circumspect. Barrett’s book is a mashup of the two forms: memoir and personal reflection are interlaced with explanations of legal doctrine. (Her grandmother’s unwritten recipe for shrimp remoulade provides a jumping-off point for discussing the benefits of a written constitution: 'Unwritten constitutions, like unwritten recipes, can be hard to pin down.')"

Writes Ruth Marcus, in "How the Supreme Court Defines Liberty/Recent memoirs by the Justices reveal how a new vision of restraint has led to radical outcomes" (The New Yorker).

This definitely gets my "unread books" tag (though I did read, a blog about, "My Grandfather's Son"). 

Marcus gives the Justices credit for writing "about their understanding of the law," but do they? How could they really?

Here's my old post "What I really think about the Clarence Thomas book" (from October 2007). I sort of "live-blogged" my reading of that book, and along the way, I was "accused both of fawning over him and of obsessively hating him," but, I said:

"What did you think of that Supreme Court oral argument?"/"I'm enjoying learning about the parts of speech."

That's a snippet of phone conversation between Meade and me — my question, his answer — as we'd been listening separately, through headphones, as we were walking toward our meeting spot in the lakeshore woods. 

From the concordance to the transcript of the argument in Learning Center v. Trump:

noun [5] 16:19 52:3,25 53:

20 85:22 ...

verb [9] 11:25 16:10 40:8 

52:3,11 53:20 100:13 135:

4 176:21

verbs [29]11:25 12:2,7 16:

19 28:16 29:3,16,22 30:2

Context: 

GENERAL SAUER: Dames & Moore... said, this particular provision, where Congress has given these broad verbs, I mean, "regulate" is a capacious verb, admittedly, so are "nullify," so are "void," so are, frankly, all the other verbs there in the -- the language in IEEPA. 

"But my goal was to push the justice on... whether her preferred legal theory, originalism, can bend and flex in response to prudential and political concerns."

"[Amy Coney] Barrett believes strongly that it shouldn’t, that justices should rule without worrying about public opinion or who happens to be in the White House. But I tend to think real-world politics constantly tests and limits that ideal. So in our conversation, I’m trying to find those limits and the ways in which even justices devoted to the original meaning of the Constitution have to deal with the highly unusual pressures of right now."

Writes Ross Douthat in the introduction to his podcast, which is an interview with Amy Coney Barrett — "Amy Coney Barrett Is Looking Beyond the Trump Era."

I'll let you listen to that and decide if Douthat got what he said he was pushing for. It's a well-worn road, and I was distracted by the phrase "the highly unusual pressures of right now." It made me think of "the fierce urgency of now." It's always now. Is the pressure of the now that happens to be today's now really so highly unusual? There's too much melodrama!

I began to fritter away precious time thinking of mellower alternatives to "the highly unusual pressures of right now"/"the fierce urgency of now." I thought of: The gentle nudge of somewhat later.

"Her opinions, sometimes joined by no other justice, have been the subject of scornful criticism from the right and have raised questions about her relationships with her fellow justices, including the other two members of its liberal wing."

Writes Adam Liptak, in The New York Times, about Ketanji Brown Jackson.

“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” Justice Barrett wrote, in an opinion [in Trump v. CASA] signed by all five of the other Republican appointees.

“The principal dissent focuses on conventional legal terrain,” Justice Barrett went on, referring to Justice Sotomayor’s opinion. “Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.”...

I think Liptak is trying to build Jackson's reputation. He writes things like: "Justice Jackson has appeared comfortable expressing herself from the start." He compares her to Justice Breyer and Justice Brandeis:

“I was frightened to death for the first three years,” Justice Breyer said in a 2006 interview. Even Justice Louis D. Brandeis, a giant of the law who sat on the court from 1916 to 1939, needed time to find his footing. “So extraordinary an intellect as Brandeis said it took him four or five years to feel that he understood the jurisprudential problems of the court,” Justice Felix Frankfurter wrote of his friend and mentor. 

That does not work as a compliment to Jackson.

ADDED: The Washington Post just published a similar article, "One of the Supreme Court’s sharpest critics sits on it/Justice Ketanji Brown Jackson emerges as a strong voice on an unusually fractious U.S. Supreme Court."

Moments away — we'll be getting the last cases of this Supreme Court term.

The cases will be posted on the Court's website, here. And here's the live-blogging at SCOTUSblog.

Here's Grok's summary of the remaining cases — birthright citizenship, racial gerrymandering, the nondelegation doctrine, Obamacare, access to on-line porn, and parents opting their kids out of woke school lessons.

UPDATE 1: "Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, are broader than necessary to provide complete relief to each plaintiff with standing to sue" — Trump v. CASA. This is the "birthright citizenship" case, but it did not address the issue "whether the Executive Order violates the Citizenship Clause or Nationality Act. Instead, the issue the Court decides is whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions." Decided 6-3 (in the usual 6-3 breakdown).

From Justice Barrett's opinion: "The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority. That the absence continued into the 20th century renders any claim of historical pedigree still more implausible. Even during the “deluge of constitutional litigation that occurred in the wake of Ex parte Young, throughout the Lochner Era, and at the dawn of the New Deal,” universal injunctions were nowhere to be found....Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle."

Addressing Justice Jackson's dissent, Barrett writes: "JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary. No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so. See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it). But see post, at 15 (JACKSON, J., dissenting) ('If courts do not have the authority to require the Executive to adhere to law universally, . . . compliance with law some-times becomes a matter of Executive prerogative'). Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law. JUSTICE JACKSON skips over that part. Because analyzing the governing statute involves boring 'legalese,' post, at 3, she seeks to answer 'a far more basic question of enormous practical significance: May a federal court in the United States of America order the Executive to follow the law?' Ibid. In other words, it is unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive. JUSTICE JACKSON would do well to heed her own admonition: '[E]veryone, from the President on down, is bound by law.' Ibid. That goes for judges too."

UPDATE 2: Kennedy v. Braidwood rejects the Appointments Clause challenge to the U. S. Preventive Services Task Force. The members of the task force are deemed "inferior officers," thus not needing appointment by the President and Senate confirmation. This one is 6-3 in an unusual way. Sotomayor, Kagan, and Jackson join the majority opinion written by Kavanaugh (and also joined by Roberts and Barrett). The dissenters are Thomas, Alito, and Gorsuch.

UPDATE 3: FCC v. Consumers' Research — "The universal-service contribution scheme does not violate the nondelegation doctrine." Another 6-3 the unusual way — with a dissent from Thomas, Alito, and Gorsuch.

UPDATE 4: Mahmoud v. Taylor, 6-3, the usual way. "Parents challenging the Board’s introduction of the 'LGBTQ+-inclusive' storybooks, along with its decision to withhold opt outs, are entitled to a preliminary injunction." Justice Alito writes for the majority:

The Board of Education of Montgomery County, Maryland (Board), has introduced a variety of “LGBTQ+-inclusive” storybooks into the elementary school curriculum. These books—and associated educational instructions provided to teachers—are designed to “disrupt” children’s thinking about sexuality and gender. The Board has told parents that it will not give them notice when the books are going to be used and that their children’s attendance during those periods is mandatory. A group of parents from diverse religious backgrounds sued to enjoin those policies. They assert that the new curriculum, combined with the Board’s decision to deny opt outs, impermissibly burdens their religious exercise. 

Today, we hold that the parents have shown that they are entitled to a preliminary injunction. A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill. Wisconsin v. Yoder, 406 U. S. 205, 218 (1972). And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction. Based on these principles, we conclude that the parents are likely to succeed in their challenge to the Board’s policies....

I added the boldface. The school was so out front in its desire to reprogram children. They must have been pious believers... or at least people who felt called to pose as pious believers. 

UPDATE 5: Free Speech Coalition v. Paxton, 6-3, the usual way, upholding the Texas law that restricts access to on-line porn. How do you exclude minors without burdening access for everyone? Here, the state required age verification. "But adults have no First Amendment right to avoid age verification. Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment. This makes intermediate scrutiny the appropriate standard under the Court’s precedents." And the law "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." 

Kagan writes in dissent: "[I]f a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to). A State may not care much about safeguarding adults’ access to sexually explicit speech; a State may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children."

UPDATE 6: The racial gerrymandering case — Louisiana v. Callais — will be reargued. Justice Thomas, alone, dissents: "These cases also warrant immediate resolution because, due to our Janus-like election-law jurisprudence, States do not know how to draw maps that 'survive both constitutional and VRA review.'"

"Supreme Court allows Tennessee ban on gender-transition care for minors."

Free-access link to WaPo, here.

Here's the full text of the opinion, which is 6-3, divided as you would expect a 6-3 case to be divided. The Chief writes the opinion, and the other 5 conservatives join, but Alito only joins parts I and II-B. There are concurring opinions from Thomas, Barrett, and Alito. There's also some discord among the dissenters, with Kagan only joining part of Sotomayor's opinion. 

MORE: The Chief's opinion rejects heightened scrutiny because the Tennessee law — "[w]hen properly understood from the perspective of the indications that puberty blockers and hormones treat" —  "does not classify on the basis of sex." 

When, for example, a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty.

"Writing for the majority, Justice Amy Coney Barrett said companies such as Facebook and YouTube have long-standing content-moderation policies that place warning labels on certain posts and delete others."

"The challengers, Barrett wrote, did not demonstrate that the companies’ actions to remove posts were traceable to the government. Barrett said a lower court got it wrong when it 'glossed over complexities in the evidence' by attributing to the Biden administration every company decision to remove or moderate content. 'While the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment,' she wrote."

From "Supreme Court allows White House contacts with social media firmsIn a 6-3 ruling, the majority said the challengers did not have legal grounds — or standing — to bring the case against the Biden administration" (WaPo).

ADDED: Here's the NYT piece, by Adam Liptak.

6 quotes from today's oral argument in Trump v. United States.

I listened live and took some handwritten notes, so I could find various things in the transcript. Here are the 6 quotes that made the cut for me. All but one are from the Justices.

1. Trump's lawyer, D. John Sauer, encourages the Court to see far beyond Trump to the true horror of criminally prosecuting ex-Presidents:

The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for... allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?

2. In a similar vein, from Justice Alito:

So what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War II? Couldn't that have been charged under 18 U.S.C. 241, conspiracy against civil rights?

3. Justice Gorsuch makes a brilliant suggestion. If Presidents didn't have immunity from prosecution, they could give themselves the equivalent by pardoning themselves on the way out. And note the reminder that Obama could be on the hook for those drone strike murders:

The Supreme Court case.... is unanimous and in Trump's favor.

 Here's the full text. From the per curiam opinion:

Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse....

All nine Members of the Court agree with that result.

Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I (joint opinion of SOTOMAYOR, KAGAN, and JACKSON, JJ.); see also post, p. 1 (opinion of BARRETT, J.). So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches. 

ADDED: The per curiam opinion emphasizes the role of Congress in determining that Section 3 applies to someone:

The Supreme Court issues its "true threats" case.

"The state must show, Kagan writes, that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The state need not prove any more demanding subjective intent to threaten another."

Summarizes SCOTUSblog.

Opinion here: Counterman v. Colorado.

ADDED: From the majority opinion by Justice Kagan:

"What speech, she said, comes close to being a 'true threat' but is so 'supervaluable' that we need to be worried about it?"

"She" = Justice Kagan, described in "Justices hear 'true threat' protected speech case" (SCOTUSblog). 

At the end of nearly two hours of debate, the justices generally appeared skeptical of Colorado’s contention that courts should use an objective test, that looks at whether a reasonable person would regard the statement as a threat of violence.... 

Chief Justice John Roberts... cited one of the statements for which Counterman was convicted, in which he told Whalen that “staying in cyberlife is going to kill you. Come out for coffee.”....

Justice Amy Coney Barrett... asked “[Who] is the reasonable person?” She outlined a hypothetical involving a college classroom in which a professor, for “purely educational” reasons, “puts up a picture of a burning cross and reads aloud some threats of lynching that were made at the time.” “Maybe it’s the case,” Barrett suggested, “that nowadays people would be more sensitive to that and … a reasonable Black college student sitting in that classroom would interpret that as threats … that might materialize into actual physical harm.”

"Protest is a kind of theater, as abortion rights activists who dressed as characters from 'The Handmaid’s Tale' outside the home of Justice Amy Coney Barrett know."

"The performance is not just for the target of the protests but also for anyone who sees it via news images or video or social media. The fact is, a group of people targeting just one person, at home, particularly at night, appears menacing.... Florida’s lawmakers went so far as to ban 'picketing and protesting' at any person’s private residence.... I believe such bans to be unconstitutional. The right of all Americans to peacefully assemble must be protected. But that doesn’t mean that protesting at the homes of public officials is effective.... I expect that those who gathered outside my home also felt shut out from power when they screamed at me [in December 2020]. But showing up at my home to shout falsehoods about an election because they didn’t like the results did not help their cause.... These protesters attempted to bully me into abdicating my duty to protect the will of the people of Michigan. But the people who made me fear for my family that night also emboldened me to do my job with integrity.... [P]rotesting outside an official’s home is rarely if ever effective at achieving the goals of those gathering — and oftentimes, it backfires."

From "Protesting at Judges’ Homes Must Remain Legal. That Doesn’t Make It Effective" by Michigan secretary of state Jocelyn Benson (NYT).

If sensible people realize that a protest outside of a public official's home is likely to backfire, then we may infer that people who protest outside a public official's home are irrational. That's an idea you might want to use if you need to argue that the bans on these protests are constitutional. Benson makes a good argument, but if it works, it won't work on 100% of the protesters who would otherwise take to the street right outside someone's house. The ones that are left are those who are least likely to care about lawful, peaceful persuasion.

But also: Protests are not really about rational persuasion. They're about stirring up emotion, and emotion is inextricably intertwined with even the most earnest efforts at rational decisionmaking. I assume that the elite, educated, accomplished Ms. Benson endeavors to "do [her] job with integrity," but I don't believe she can exclude all feeling. In the case of the pro-Trump protesters screaming at her house, she felt "emboldened" — that is emotional. The protesters stirred up her fighting spirit. Yes, it backfired for them, but — by her own report — she was not impassive and solidly grounded in neutrality.

"Just do the 9 and plop."

"[T]here has been surprisingly little discussion of the fact that [Ketanji Brown Jackson] would join Justice Amy Coney Barrett as the court’s second working mother."

Writes by lawprof Melissa Murray in "Another Working Mom for the Supreme Court?" (NYT). 

While Democrats have touted [Jackson's] sterling qualifications and the historic nature of her nomination as the first Black woman to the court, few have leaned into her identity as a mother, as the Republicans did with Justice Barrett.

Murray knows there are 2 big differences. One is that Barrett has 7 children — and the youngest was only 8 at the time of confirmation, 2 were adopted (from Haiti), and 1 has Down Syndrome. Jackson, by contrast, has 2 children, ages 21 and 17.  

The other big difference is, as Murray puts it: "Democrats may be less inclined to flag a nominee’s family status as evidence of professional accomplishment or acumen." What I'd say there is that liberals and progressives are more likely to criticize people who call attention to a woman's status as a mother: Why are you talking about the fact that a woman is a parent when you don't talk about men that way?! In fact, I have to wonder about Murray, touting Jackson's momhood. Does she write NYT columns about the dadhood of male nominees?

"The father plays absolutely no part in this. That is part of her rehabilitation. When she renounces her child for its own good, the unwed mother has learned a lot."

"She has learned an important human value. She has learned to pay the price of her misdemeanor, and this alone, if punishment is needed, is punishment enough.... We must go back to a primary set of values and the discipline that starts with the very small child." 

Said Dr. Marion Hilliard of Women's College Hospital in 1956, quoted in the Wikipedia article "Baby Scoop Era," which I was reading because that term, "Baby Scoop Era," came up in a new WaPo article, "Barrett is wrong: Adoption doesn’t ‘take care of’ the burden of motherhood/This view of adoption and abortion has failed American women." 

From that new article, which is by Gretchen Sisson, a research sociologist at Advancing New Standards in Reproductive Health in the Department of Obstetrics, Gynecology and Reproductive Science at the University of California, San Francisco:

Because of the social pressures that shaped notions of “appropriate” pregnancy and “respectable” motherhood, the decades between World War II and Roe were dubbed the “baby scoop era.”...

I didn't remember ever seeing that term before and couldn't even understand it. What was "scooped"? 

Justice Amy Coney Barrett connected the right to abortion and the right against mandatory vaccines.

This is interesting — challenging — because most people who believe in at least one of those rights believe in only one. Or so I assume. Is there entitlement to bodily autonomy or not?

Justice Barrett only made a passing reference linking these 2 purported rights. A ban on abortion after 15 weeks is "is, without question, an infringement on bodily autonomy," she said, then added that we have that "in other contexts, like vaccines." Clearly she meant mandatory vaccines.

Here's the whole context, from the transcript of yesterday's oral argument. Barrett — questioning Julie Rikelman, the lawyer for the respondent, the Jackson Women's Health Organization — brings up how easy it is these days to give up a newborn baby for adoption. Legally easy. So maybe Court shouldn't put much if any weight on the burdens of forced parenting. If the analysis is limited to the burdens of pregnancy and childbirth, Barrett says, "it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines."

Am I in denial about the coming demise of Roe ?

I write "Roe" for simplicity, but Roe was replaced long ago by Casey. Denial is embedded in the precedent. Casey purported to discover the "essence" of Roe and rewrote the doctrine, and that was what it meant to adhere to stare decisis. 

After listening to the oral argument yesterday — before reading any commentary — I wrote "I predict stare decisis will prevail." This morning I'm reading the commentary, and everyone seems to be saying they know the Court will overrule Roe Casey, so I thought I'd link to a few things and then speculate about why, politically, that's what you'd want to say.

So, first, the NYT, Adam Liptak: "Supreme Court Appears Open to Upholding Mississippi Abortion Restriction/After two hours of sometimes tense exchanges in one of the most significant abortion cases in years, the court appeared poised to uphold the state law, which bans abortions after 15 weeks of pregnancy." Liptak is vote counting, and he sees Roberts as looking for a middle way — drawing the line somewhere other than viability. Roberts needs another vote, and "the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach." This middle way would resemble Casey, keeping the essence while changing the doctrine. 

Next, here's Noah Feldman at Bloomberg: "The Supreme Court Seems Poised to Overturn Roe v. Wade/The chief justice suggested a way to restrict abortion without going that far, but the swing voters didn’t engage his potential compromise." That sounds just like Liptak's position, but Feldman goes further characterizing the mindset of Justices Brett Kavanaugh and Amy Coney Barrett: they "seemed pretty set on making history by overturning Roe."

Third, here's Amy Howe at SCOTUSblog: "Majority of court appears poised to roll back abortion rights." Howe counts Kavanaugh among the Justices who seem ready to "overrule Roe and Casey outright." She sees Gorsuch and Barrett as the ones who might join Roberts in this imagined middle position. 

Just one more — Dahlia Lithwick at Slate: "SCOTUS Will Gaslight Us Until the End/Oral arguments today made clear that this court will overturn Roe—and that they’ll insist on their own reasonableness the whole time." This piece is different from the other 3. It's much more of a rant, but overruling Roe Casey, if that's what the Court is really up to, deserves a rant. Lithwick doesn't believe the "precious" talk of the seemingly more moderate conservatives: It's a 6-3 Court and that's that.

I'm going to look at the transcript closely soon, and I'll explain why I think the middle position didn't get much traction and why, consequently, I'm going to stick with my position that the pro-abortion-rights position will win. But just to repeat what I already said: For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis. And viability is the line that the precedent draws. 

But I see the value of predicting the overruling of Roe (that is, Casey). Activate people now. Get the political movement started early, because it will be immensely powerful if the Court overrules Casey ("Roe"). And there's some chance that the vision of powerfully activated Democratic Party politics will influence the conservatives on the Court and cause them to preserve the precedent. 

Listen to the oral argument, starting now.

Here. 

UPDATE: I listened to the entire thing. I predict stare decisis will prevail. The lawyer for the state was particularly weak in his effort to assure the Court that Roe and Casey could fall without endangering any other precedent (e.g., Obergefell). There was some effort to discover a compromise position, drawing the line somewhere other than viability, but nothing emerged. Not that I could hear on this first pass. I will probably say more when I get the transcript. 

ADDED: Thinking about Obergefell, I wanted to quote this passage from the Chief Justice's dissenting opinion:

By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Boldface added.  

That was 6 years ago. What "winds of change" are "freshening... backs" today?

In any case, the question then was whether to take something out of the political arena. The question now is whether to throw something back in after it's been out for 50 years! 

AND: On the theme of keeping the government's hands out of our body, Amy Coney Barrett brought up mandatory vaccination.