Hey Folks Supreme Court heard oral argument in a pair of challenges to SB eight. The Texas law that bans abortions once a fatal heartbeat can be detected that around six weeks of gestation There's also big news about Facebook. This week, the consortium of news organisations has published a series of reports called the Facebook papers, which damaging information from internal company documents the document show, among other things, the facebook ignore the spread of information and conspiracy theories relating to the TWAIN. election and cure not refuse to share with policymakers. Its trove of research nineteen vaccine information and Instagram harmful impact on teenagers, Joyce vans and discuss all of this and more on the cafe insider podcast. today were sharing a clip from the episode would listeners of stay tuned to hear our full conversation and access all other Cathay insider content. Try the membership free for two,

you can do that at cafe. Dot com, slash inside that's, cafe, dot com, slash insider look for to having you as part of the insider community, so its November joys and if its November, it means the Supreme Court on the first day of November, which was yesterday addressed this case we ve been talking about, will actually two cases too distant cases, overlapping issues, the abortion LAW in Texas, SB, eight. The vigilante Abortion far and low surprising there is a lengthy oral argument. now in a half an hour There's no half on the other, kids do and remind people or we're talking about said this is the litigation over a Texas is SB eight, an hour listeners, I think, will recall the tortured procedural history here so I'll

skim it. A little bit. Abortion providers sued over Texas is antium russian law that essentially ended abortion in Texas for women at a very early stage and the Supreme Court, ultimately decline to enjoin that law, while its constitutionality was being litigated. In other words, the law goes into effect d, J File, the lawsuit behind the providers and the district judge enjoins the law in that case, but the fifth circuit very quickly terminate stat injunction and the Supreme Court we believe, is going to go along, or at least I did. I thought the Supreme Court would go along with the fifth circuit, but there was this quick setting for oral argument yesterday on both cases and the outcome. Wasn't exact what I had thought it would be. Yes, we were very pessimistic, getting a lot of people very pessimistic, because the fact that the Supreme Court heard the case earlier

declined to enjoying the law enjoying the enforcement of the law, meaning stop the law. The fact that they didn't do that. Even though a constitutional right was being abridged, a clear constitutional right was, being abridged, lead us to be pessimistic What would happen now? The all arguments suggests otherwise, and you never know. Maybe we should talk about this for a moment. You know how is it that we know and predict what the Supreme Court will do? Sometimes it's the case. The justices asked tough questions and play devils Advocate and didn't really. The point of view that there are putting forward in their questioning because you're trying to understand the parameters of the argument. But here a great deal on people agree that the three liberals on the Supreme Court plus John Roberts, who was on the liberal side, the last time around plus, perhaps Amy Conny, bear it and read Cavanaugh all hell.

Lot of concerns about the law. Do you think this was an exercise in being devils advocate? Or this really shows the views that they have set? Brett Cavanaugh was the one I was the least firm about, but I think then he will ultimately vote to enjoy the law and it's important to say that this is now. about whether or not the law is constitutional, whether the right to abortion will survive. This is about whether the law should be enjoined while these proceedings are ongoing. Like you PETE, I think it's really dangerous. To read, He mentioned. The Supreme Court justices questions in oral argument, because sometimes they push really hard to try to fully explored the dimensions of an argument that they don't intend to support. But here I I took it a little bit differently. You know you- and I had talked a little bit about my notion- that perhaps the Supreme Court with somewhat responsive to the mood in the country. We know that seventy

percent of Americans roughly favour having abortion remain legal that likely not where this court is headed they'll take that issue up in the Mississippi case, dogs in December, but on this issue this case, is about whether or not the rule of law still matters in this country? Whether courts can review state laws for constitutionality, and on that basis it felt to me like at least justice, bear it and likely just Cavanaugh were willing to join the majority previously the minority and say that this text, this law, which is designed to circumvent judicial review, it denies a clear constitutional right. and make sure that there is no mechanism for people to review that pre enforcement. They seem to have come around to the view that the rule of law still needs demand if they want to go on, be injustices on on. What's called the Supreme Court in this

tree by the way you know my view is. It is fully logical for conservative justice who doesn't like row doesn't like abortion wants to restrict reproductive rights to still be against as be eight in Texas, and that's because of the way the Texas law goes about its enforcement mechanism as we discuss before basically about, is paid to any private citizen who wants to sue someone who engages in a lawful, constitutionally protective action. In this case, abortion and no matter what your views are gonna, be amendments to the constitution and rights in the constitution that support and others, maybe you'd, feel ass trot about- and you may not feel strongly about abortion right. But you may feel strongly about the right to bear arms or the first amendment or some other individually protected in the constitution, and if that is so

Must worry, as justice is just an oral argument, they might have such worries that if this mechanism is approved and sanctioned and blessed by the Supreme Court, then what is to prevent folks from doing the same thing with respect to something else. In the end, the example that comes up most often came up yesterday is the second amendment was to prevent a liberal state legislature in a blue state from saying hey, gun ownership. We can police that I in giving bounties to people To deciding what to shoot someone who's possessed a goner used again in a way. This fully consistent with how in other quarters interpret the second moment before under Heller and other cases, that's a bad thing and New Kagan does his Kagan specifically said. If we accept Texas position quote

it would be inviting states of fifty of them to try to nullify the law. This court has laid down yeah. I think this is the floodgates argument. If what Texas did hear passes muster then who's to say that other states can't write laws that are specifically designed to avoid judicial review So I think this is very interesting when you consider the fact that it, forty nine Amy Coney bear it as the youngest justice on the Supreme Court. She is going be around for a long time, and I think that she's fully cognizant of the fact that today's conservative

majority on. The court may not be what the court looks like for her entire tenure and she wants to make sure that this can't swing back around. She, in essence, is doing what we want judges and justices to do. She is thinking not about the issue at stake, abortion. She is thinking about the rule of law and how it should work. Why we have judicial review in this country, which is to protect rights without regard to what they are in. She asked this really interesting question. She suggests that, because of the way, that the Texas lie is written clinics can't fully vindicate their constitutional rights in court and what she means by that is for one thing, there is no mechanism, as Texas sees it for pre enforcement review of this law, but even if you happen to be a person whose defending yourself against one of the law suits that the state statue author,

as you can only raise your own defences, which the statue limits and you cannot assert, becomes the traditional right that women have to abortion under existing law to defend your conduct, so justice bear it. I think, sees the future and doesn't want the future to look the way Texas is SB. Eight looks for right. She might care more about like gun rights and particularly religious rights through from the perspective of somebody who cares about reproductive rights. Does that make Amy Coney bear more or less dangerous in the long run? You know, I think at least for yesterday it made her someone who was willing to think about prudential concerns about how judicial review works and whether we are going to have viable judicial review in this country or whether some geniuses, like the authors of the Texas statute can circumvent it. You see some geniuses because that's what does his Kagan call the right

notable line from moral argument and the fact that after Oh these many years, some geniuses come up with a way to, evade the commands of that decision. as well as the command that the even broader principle that states are not to nullify federal constitutional rights and to say owed. We ve never seen this before. So we can't do anything about it. I guess I just don't understand the argument. You know it was wonderful moment when she referred to some genius is the folks who thought that they were the smartest guys in the room when they read the text. This statue, and then one of those geniuses Jonathan Mitchell, had to argue his amicus brief in front of the court It was not a memorable argument. The rest of the argument was highly memorable. He was not do you think he was flat by being called a genius. You know if he was, then he didn't hear justice.

With clear insinuation, but you know we, I suspect, and of course, my predictions about the court. recently been very wrong, but I still think that we will not be substantively is pleased with Justice bear its position and in Dobbs the case that will look at reverses, aid and whether abortion rights continues as they exist today, but there's process in their substance when you think about the law and it's important to have fair, impartial processes, it's important to have judicial review and to not let states surreptitiously and disingenuous Lee avoid it. So, at least for yesterday she was a champion for the rule of law to revisit the theme that we ve talked about, we got two weeks is important in this context. contexts and played out in part of the oil argument yesterday, and that is again and again and again

people on one side of an issue. The legal issue, a constitutional issue, were political issue. Take the position that the thing that is being asked for is unprecedented, is radical, hasn't been done before and that may be technically correct, but they fail to appreciate but the thing that's being asked for is unprecedented, because the thing that it is in reaction to is itself unprecedented rights. Of course it was a sort of in this theme. Asking the new solicitor General Elizabeth, Pre, logger and he's asking her Are you wherever a precedent that permits an injunction against all persons and the country of the world, the cosmos bring suit no just a score. Such horror injunction doesn't do that either we use it against. Anyone who brings rights include that of my limitation. Am I missing something just to be clear- and I am sorry if I wasn't clear about this before we understand the injunction only to bind those in

the jewels who choose the bridle suit and elaborate back when they were ass, my health, or are you aware of any other example of such and such an injunction? With that specific terms? I can't site one to you, a long history you can. You can identify one for us right in the history of the United States. No state is done. What Texas is done here so Are you talking about issuing of subpoenas? What are you talking about covered related restriction? the things that are being asked for our own, the extreme if you're not looking at the context, if not looking at the things that their in response to an I find, intellectually dishonest. For people again and again again only to focus Hon The remediation is being asked for and how unprecedented that is without acknowledging the reason for it, you grew, then I do and I think

brand new solicitor general look. I can't imagine arguing a Supreme court case if I had six months to prepare. She had what ten days of formal notice from the time of her confirmation, and she did really an impeccable job in oral argument in large part because of this issue, that your highlighting, where she's pushed and some of the conservative justices, repeatedly try to get her to concede that the relief that she's requesting is unwarranted and goes too far, particularly efforts that would enjoying state court judges and she's sticks to the theme sang. The reason this case is so novel. The reason that the relief is so novel is because the situation is unprecedented and and something that struck me listening to her pre was it feels like. So many commentators have struggled to make the point that this statute, this law, that Texas adopted

It's just so you know in the language of my people. It's just missed shook ass right, I mean you, can't deputize private citizens all across the country to go out and enforce your unconstitutional law, just the hubris of even attempting. That is absolutely ludicrous. And she in a polite, dignified, but very firm way made that argument and essentially said an unusual law Choirs unusual measures to adapt to it and by the way, justices if you're not willing to give the United States relief. In this case, then you can kiss the rule of law good by your guess, the questionable it will have as well what happened here in the initial Supreme Court case when there,

dealing with an interim basis in deciding whether to keep it in place or not, do you think the justices like Barrett Ann Cavanaugh had a different view and were open to SBA before they change their mind, for it seems a little bit odd way. Idea. thanks for listening to fear them episode had to cafe dot com, slash insider and try the membership free for two weeks. That's cafe dot com, slash insider to the many of you, chosen to join the insider community. Thank you for supporting our work