A 50-YEAR ARGUMENT — There are a handful of Supreme Court moments that are history making. This morning’s oral arguments on Mississippi’s 15-week abortion ban seems likely to join them. A majority of justices seemed to signal they were willing to overturn Roe v. Wade, along with nearly five decades of court predecent on abortion rights. In 1973’s Roe and 1992’s Planned Parenthood v. Casey, the court had ruled that a fetus is viable at 24 weeks and said that abortion restrictions before then cannot place an undue burden on a pregnant patient. If the court rules otherwise, in a decision likely to come next summer, in the case known as Dobbs v. Jackson Women’s Health Organization, it could have consequences beyond just the future of abortion rights in the U.S., University of Texas law professor Stephen Vladeck told Nightly. “The revealing exchange was when Justice Brett Kavanaugh ticked off all of these cases, where the implication was that these are cases that progressives think are good overrulings of precedent, almost as a rhetorical device,” Vladeck said. Nightly reached out to Vladeck, a constitutional law scholar at the University of Texas School of Law, to talk about what we learned from today’s oral arguments about how the justices might rule. This conversation has been edited. What do you think a majority opinion could look like? The most important thing that I didn’t hear today was a lot of support for the idea that there is some intermediate position between Casey and an undue burden test, for pre-viability restrictions, and getting rid of Casey altogether. A compromise would be moving the viability line and having the undue burden test apply to state laws up until that point. Justice John Roberts tried a couple of times to float such a possibility, but I didn’t hear a lot of takers from his right. I do think today’s justices see precedent and stare decisis simply as something they have to account for but not independent justification for a holding. What did we learn today about the court’s concern about being seen as overly political? This is a different court than we have seen in our lifetimes. This is a court that is not remotely worried about the political branches. I don’t think that’s wrong. But it’s an interesting reflection on where we are. Historically one of the constraints on the court handing down decisions that provoke massive reactions has been the possibility that there would be a reaction. What we heard today is the court is not especially worried about the political branches at the moment and not worried about being perceived as overreaching by as much as half of the population. How would overturning Roe affect other decisions that the court has said apply across the U.S.? Justice Kavanaugh spent a lot of time today extolling the virtues of what he called “scrupulously neutral constitutional rules” that leave matters to the states. After the eradication of slavery, one of the real achievements of the post-Civil War amendments was actually to hold states to uniform federal constitutional standards. We seem to be on the precipice of real retreat from that principle. Is there a scenario in which a future court reinstates Roe? That further perpetuates a narrative that the court is a little more than a political institution. Even if the sort of post-Roe status quo is restored, the damage to the court’s legitimacy isn’t. It has been less time since Roe than since the last time the majority of the justices have been appointed by Democratic presidents. Roe was decided in 1973. The last day there was a majority of justices appointed by Democratic presidents was May 14, 1969. I don’t know that is something that we should look forward to any time soon. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight’s author at rrayasam@politico.com, or on Twitter at @RenuRayasam.
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