"This is one of the hottest benches I've seen in a while."

There's live-blogging of Trump v. Slaughter going on over at SCOTUSblog.

ADDED: I'm listening to the direct audio from the Court, which is here.

AND: At SCOTUSblog, Amy Howe observes that "a solid majority of the justices appeared to agree with the Trump administration that a law prohibiting the president from firing FTC commissioners except in cases of 'inefficiency, neglect of duty, or malfeasance in office' violates the constitutional separation of powers....  Much of the argument focused on the possible broader effects of a ruling for either the Trump administration or Slaughter. The justices questioned whether a decision in Slaughter’s favor could give Congress sweeping power, including the authority to convert existing Cabinet departments into multi-member agencies that would be insulated from presidential control.... In what was likely a bad sign for Slaughter, the justices spent virtually no time on the second question presented in the case – whether, even if the FTC removal statute is constitutional, a federal judge can order the reinstatement of an official who was fired without case, or whether that official is only entitled to back pay...."

Predictions elsewhere are similar: "Justices Seem Ready to Give Trump More Power to Fire Independent Government Officials" (NYT), "Supreme Court poised to expand Trump’s power over independent agencies" (WaPo).

Here's the transcript of the argument. Listening to the audio, I scrawled down one phrase I wanted to use to find the one quote I most wanted to blog. But I'm going to start a new post for that. The phrase was "cards on the table."

"My guess is that regardless of what happens in Tom’s criminal case, SCOTUSblog will endure."

"Tom scaled down his involvement with the site years ago—if the indictment is to be believed, he had a lot of other things on his plate—and today SCOTUSblog is really run by Amy Howe, its main courtroom reporter, and Ellena Erskine, its editor. I see no reason why Amy, Ellena, and SCOTUSblog’s nine regular contributors can’t continue their excellent and invaluable work. I don’t know—and can’t imagine—what’s going on in Tom and Amy’s marriage right now... If Tom and Amy go their separate ways (or even if they don’t), they should squarely place all ownership and control of SCOTUSblog in Amy’s hands.... And as a loyal reader of SCOTUSblog pretty much since its inception, I hereby volunteer to do anything in my power to keep it up and running...."

Writes David Lat, in "SCOTUSblog Founder Tom Goldstein Hit With 22-Count Federal Indictment/A lengthy indictment accuses the once high-flying Supreme Court lawyer of massive tax evasion—tied to multimillion-dollar poker losses and multiple affairs" (Substack).

Lat thinks Goldstein's future is not all used up: "He’s only 54, and he still has the intelligence, hard work, and hustle that allowed him to launch a leading Supreme Court website and become one of the nation’s top SCOTUS advocates, even though he never clerked for the Court or graduated from an elite law school. And if the allegations are true, Tom has an unimaginable amount of energy: he was somehow able to argue before the Supreme Court, run a law firm, win and lose tens of millions in high-stakes poker, juggle a dozen women, oversee SCOTUSblog, and raise two kids... He also helped develop a pitch for a television show based on his life and career, which got picked up for development by NBC in 2009. The program, tentatively called Tommy Supreme, never made it to the screen...."

But now the story is far more exciting — especially if he's guilty. Lat sketches out possible futures for Goldstein — including "a pardon from Trump." And, interestingly, Goldstein published "End the Criminal Cases Against Trump" in the NYT (last November, just after the election). But if the idea is to produce a great redemption story —  worthy of that TV show — it can't end with a presidential pardon.

"The Supreme Court will hear oral argument on Tuesday in a dispute over the Biden administration’s authority to set immigration policy."

Writes Amy Howe, at SCOTUSblog. 

[T]here are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them.... Texas and Louisiana went to federal court in Texas to challenge the Biden administration’s policy, arguing that federal law requires the government to detain and deport many more noncitizens than those identified by [Secretary of Homeland Security] Mayorkas as high prioriti[ies]....

The district court vacated the policy, and the Supreme Court agreed to take the case without waiting for the Court of Appeals.

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.