Does that mean it might be safe?
One of the most interesting fissures that has opened up within the conservative legal movement in recent years has been between mainstream conservative lawyers and the growing performance artist faction of the lawyers for the Trump base. Soon, the conservative justices themselves will have to pick which side of the battle they are on: With the filing last week of a brief that explicitly asks the Supreme Court to overturn Roe v. Wade, the state of Mississippi is forcing the court’s three newest Trump-appointed justices to choose between institutional stability and law that channels right-wing internet memes.
Examples of the latter abound in the past year. Rudy Giuliani has seen his license to practice law temporarily suspended—twice!—as a result of his star turns as all-purpose lawyer for crazy stuff. Last December, 17 Republican attorneys general signed a brief supporting a suit filed by Texas Attorney General Ken Paxton seeking to set aside the 2020 election based on false claims of “unconstitutional irregularities.” The chief law enforcement officers of those 17 states actually asked the Supreme Court to throw out every vote in the four consequential states in which Joe Biden had prevailed—Georgia, Michigan, Pennsylvania, and Wisconsin—and then have each state’s legislature declare Donald Trump the winner. Another exhibit might be the various lawsuits filed by Trump’s “Kraken” lawyers Lin Wood and Sidney Powell, who currently face the prospect of legal sanctions for their work advancing his bogus claims of a stolen election.
These filings bear certain hallmarks of what can best be described as litigation as imagined by a.m. talk radio hosts: maximalist claims, shoddy command of legal doctrine, disregard for the role of precedent, reliance on internet claims as “facts,” and a heavy dose of “own the libs” trolling. Distressingly, more and more frequently, these filings also bear the signatures of state attorneys general using the courts to advance their own political careers, as opposed to a coherent theory of justice. As Mark Joseph Stern explained, in describing why a full one-third of the nation’s attorneys general opted to use the power of their offices to sign on to a meritless effort to thwart democracy last December, “these lawyers run large agencies that deal with complex legal disputes every day; the job requires a level of competency that could not be met by someone suffering a complete break with reality. We should assume that these attorneys general are rational actors, politicians looking out for their own best interest.” As a result, he concluded, we must understand their willingness to sign on to the brief as an act of performative fealty to the Trump voters in their states. That these AGs have independent legal obligations and ethical rules that bar them from knowingly signing on to frivolous pleadings matters less than advancing Trump’s and their own future electoral fortunes, in their overarching calculations.
The brief filed Thursday by Mississippi Attorney General Lynn Fitch in Dobbs v. Jackson Women’s Health Organization, the most consequential abortion case of the past three decades, shows at least some signs of being a sober piece of legal pleading. It contains case citations and makes no mention of unsourced conspiracy theories. Yet in many respects, it also has some telltale whiffs of the Kraken, not least among them the headline-producing fact that the state explicitly asked the high court to overturn both Roe v. Wade and Planned Parenthood v. Casey. This request, only the third time a main brief has asked the court to overturn Roe since the case was decided and the first time in three decades, was a big, politically motivated swing directed at a court that may not be inclined to take a big politically motivated swing at Roe this fall.
The issue in Dobbs is the constitutionality of Mississippi’s Gestational Age Act, passed in 2018, among a raft of unconstitutional new anti-abortion laws in several states. The act forbids abortions after 15 weeks of gestational age unless in the case of a medical emergency or severe fetal abnormality, and offers no exceptions for cases of rape or incest. The law was challenged successfully by the only clinic in the state, and a federal appeals court agreed that the law was clearly an unconstitutional ban. Having hemmed and hawed and dithered, the Supreme Court finally agreed to hear the case in May, and made plain that the justices were prepared to explore whether states should be allowed to ban abortion prior to fetal viability, which occurs around 24 weeks of pregnancy. Viability has long been the dividing line that the Supreme Court has used to determine when a state can ban abortion—before viability, states must allow abortion (although they can impose certain barriers); after viability, states can ban the procedure as long as there are exceptions for the patient’s life and health. Arguments will likely take place in November or December with a decision to come before July.
Fitch’s brief represents an astoundingly maximalist theory of ignoring precedent, claiming that “the stare decisis case for overruling Roe and Casey is overwhelming.” Calling Roe v. Wade “egregiously wrong” (five times!), the brief asks the court to simply overturn every abortion rights decision made over the course of half a century. The casual trolling is indeed epic. Justice Ruth Bader Ginsburg, who dedicated her life to protecting women’s reproductive rights, is invoked to support the proposition that Roe and Casey “have inflicted significant damage” upon the country. The brief blames Roe for creating a national culture war that was in fact produced almost singlehandedly by Pat Buchanan, Phyllis Schlafly, and Nixon strategist Kevin Phillips. It contends that Roe and Casey and their progeny are not really precedent because they were fractured opinions. It argues that “abortion jurisprudence has harmed the Nation.” The brief even cites one of us (Lithwick) to support its claim that abortion is so contentious that it must be returned to the states to decide, without interference from the federal government. Trolly.
Just over one year ago, the Supreme Court struck down a Louisiana law that would have reduced the number of clinics in the state to one, and five years ago, the court struck down a Texas law that would have cut the number of clinics in the state by three-quarters. In neither of those cases did the state attorneys general, both outspoken, politically motivated, anti-abortion conservatives, urge the court to use the lawsuit to overturn Roe. So what changed?
Several things. For one, the Mississippi law at issue in this case is one of a new breed of extreme anti-abortion laws that have swept the nation in the past two years. Despite the fact that fetal viability is currently set at between 23 and 24 weeks, states have been banning abortion at 15 weeks (Mississippi, in this case), 12 weeks (Arkansas), 8 weeks (Missouri), 6 weeks (Ohio, Georgia, and seven others), and at conception (Alabama, Louisiana, Utah). In other words, these new laws are rooted not in state solicitude for public health, but in a desire to end legal abortion. Dobbs is the first case to arrive at the Supreme Court addressing these direct attacks on Roe.
Beyond that, the most essential change here is that Trump struck Republican gold during his presidency and was able to appoint three new Justices to the court. All three—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were established conservative jurists at the time they were elevated to the court, but by being appointed by Trump, and sometimes with some discomfort, their reputations and careers became reoriented as Trump loyalists. Since Trump stated that one of his chief goals in his court appointments was to appoint justices who would overturn Roe, Fitch received the precise message a loyal Trump soldier was sent loud and clear—send these justices a Trump-inspired brief that will appeal to the Trump moment. And that she did. What she may have missed is how hard the three Trump justices have labored to show the country that they are not partisans, not shoddy hacks, and not the brazen political actors their party promised. Just as the last term showed that, in some areas, minimalism and moderation were to be the lodestars of, at minimum, Barrett and Kavanaugh, Fitch served up a giant partisan fireworks display that would benefit her own image and career more than the Trump justices’. But perhaps that was the intended purpose.
Her Trump-stylized arguments certainly garnered immense attention for Fitch last week. Whether it further inclined the Supreme Court to grant the relief she sought is a much harder question. So far on the court, the Trump three have been reliable conservative votes, but they have not completely walked the party line. Gorsuch wrote the pivotal decision in 2020 giving LGBTQ people equal rights in the workplace; Kavanaugh is now the court’s median justice and cited something akin to the public perception of critical race theory in his opinion supporting college athletes against the NCAA; and Barrett stopped short of overturning a precedent about religious liberty that has been in conservative crosshairs for decades. These three are conservatives, there’s no two ways about it. But, are they bomb-thrower justices, like Samuel Alito and Clarence Thomas? Or are they justices prone to taking less visible, headline-eluding smaller steps to accomplish larger conservative goals while still paying some respect to half a century of precedent? That’s the choice before them now that Mississippi has so clearly thrown down the gauntlet.
Abortion rights activists who seek to see Roe ended outright celebrated the in-your-face-ness of the AG’s filing. Several argued that there was no other avenue for Mississippi and applauded the candor of a brief that no longer covered itself in fabrications about the real goals of the anti-choice movement. But, there is at least some reason to doubt that there are five, let alone four, or even three votes, at the high court for an in-your-face reversal of Roe just weeks before the 2022 midterm elections. It will be up to the Trump justices to decide just how much they side with the church of Trump, instead of the institution of the Supreme Court.
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