Pushkin. Hey, they're Deep Background listeners. It's Noah Feldment. Every other week, I'm going to be releasing bonus episodes of Deep Background via Pushnik, the new subscription program you'll find on Apple podcasts. We're calling these episodes Noah Riffs, and many of them will focus on the Supreme Court, whether it's the upcoming challenge to Rov Wade or decisions about juvenile offenders and life imprisonment. I will try to explain the inner workings of the Court to you and connect the wise and the house behind every move. I'll also touch on other developments in the news, like most recently, the shifting power structure in Israel. When you subscribe to pushnik for four ninety nine a month, you'll get bonus content like Noah Riffs, as well as uninterrupted listening across fourteen shows in the Pushkin industry's catalog, including Malcolm Gladwell's Revisionist History and Jill Lapour is the last archive. Search for Deep Background and Apple podcasts. Visit our show page and sign up there. It's easy and you can try it free for seven days. You're about to hear the first in that Nowhere Riff series about how a major case on abortion rights is making its way to a landmark hearing before the Justices. When the case is heard in the coming fall, it will be a direct threat to the fundamental right to abortion and trying to Row v. Wade. It's going to be major, and I hope my observations help you understand how it's all taking place. Pushkin Welcome Pushnick subscribers. This bonus episode of a Deep Background is exclusively available to you on Apple Podcasts subscriptions. Thanks for being a Pushnick. You'll see a more bonus content like this in your fee, and you can always listen to Pushkin shows ad free from Pushkin Industry. Is This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman today a special bonus episode, the first in a series of bonus episodes exploring the inner workings of the US Supreme Court. Why it does what it does, how it does what it does, and how the why and the how connect. In late May, the Supreme Court announced that sometime in the fall, it will hear argument in a case called Dabbs against Jackson Women's Health Organization. Their Justice has said yesterday they will decide if a new law in Mississippi is constitutional. It would impose the strictest state limits on abortion since the Roe versus Wade decision forty eight years ago. Jan Crawford is at the Supreme Court that case name may not mean anything to you now, but I promise you it is going to at issue twenty eighteen Mississippi law that would ban almost all abortions after fifteen weeks of pregnancy. The law, as written directly contradicts the core holding of Roe v. Wade, Good Evening, in a landmark ruling, the Supreme Court today legalized abortions the majority in cases from Texas and Georgia's. As you recall, in a Rovuwade, the Supreme Court held that a state lacks the legal authority to prohibit abortion before what the court called viability. That is, the moment when a fetus could survive with or without medical assistance outside the womb. The date of viability is usually thought to be twenty three to twenty four weeks. That means fully eight or nine weeks after the time that the Mississippi law would already prohibit abortions from occurring. Now, after the state of Mississippi paw that law. Challengers immediately went to federal court, and in due time the US Court of Appeals for the Fifth Circuit struck down the law because bluntly it violated Roe v. Wade. The reason everyone will be talking about this case is that, in an ordinary course of business, the Supreme Court doesn't agree to review decisions where it knows that the Court of Appeals got the issue right and when there's no controversy among different courts of appeals about what the state of the law is. In this instance, we know there's no controversy among different courts of appeal. The rule of Roe v. Wade is clear, and the lower courts have not been flouting Supreme Court precedent. That means that if the Supreme Court decided to hear the case, it must be that some number of justices believe that the time has come to undercut and maybe even overturn the cent role holding of Row. So what can we say about how the Supreme Court justices are thinking? How can we read the tea leaves? Now? Usually when you think about the Supreme Court, only one number matters, and that number is five. Five is a number of justices. It takes to get a majority of the court and to win your case. But when it comes to the Supreme Court deciding to hear a case, the number shifts from five to four. Here is what is called by Supreme Court insiders the rule of four. The rule of four says that it takes the vote of four Supreme Court justices, not five, to decide to hear a case. So, if in the Justices conference, which is what they call their meetings to discuss what cases they're going to take and what to do about the cases they have, the Supreme Court justices vote on whether to take a case, it takes four justices. If four justices say they want to hear the case, the case gets hurt. So what does that tell you? When the news comes out that the Supreme Court has decided to hear a case, it tells you, at minimum that four justices wanted the Court to hear it. Now, as it turns out, there's more information that is available to the general public to figure out when and why the Supreme Court made a decision like this, and that information lies in the Court's docket. The otherwise dry as dust, entirely boring list that tells you on what date, what event happened with respect to a Supreme Court decision. Now, in the case of Dabs against Jackson Women's Health, a close look at the docket reveals that this case first came before the justices in the early summer of two thousand and twenty. That time matters because at that time Justice Ruth Bader Ginsburg was still alive and the conservative justices on the Court were unable to be certain that they would or would not be able to get five votes to over turn some core holding of Roe v. Wade. Then, if you look at the docket, you can see that the Supreme Court began a series of delaying processes and tactic. The first time the Supreme Court justices could realistically have sat down in conference and had a discussion about whether they should hear this case was September twenty nine, twenty twenty. We know that because in the docket we know that on September second, the materials for the case were distributed and planned for the September twenty nine conference. But on September eighteen, twenty twenty eleven, days before the case was supposed to be discussed at conference, Justice Ginsburg passed away the Court consequently, at less than full strength, decided to reschedule its discussion of the case, and it did that several times. First it was rescaleded for October fifth, then October fourteenth, then October twenty ninth, then November fourth. While all of this was happening, the country was focused on the nomination of Amy Coney Barrett to replace Kinsburg and ultimately her confirmation, which took place on October twenty seven. The Yeasier fifty two the Naser forty eight, the nomination of Amy Coney Barrett of Indiana to be an Associate Justice of the Supreme Court of the United States is confirmed. Looking back to the docket, the Court still did not decide whether to hear the case. They rescheduled again November tenth, November eighteenth, December one, December nine, and then they began scheduling conversation to take place each month in January, in February, in March, in April, and finally, finally, finally, on May seventeenth of twenty twenty one, after Justice Barrett had been on the court for several months, the Court sided to hear the case. Two insiders who spend their time trying to read the tea leaves and see what the Supreme Court is going to do. These docket lists are telling pieces of evidence. What they tell you here is that the Conservative justices, who have to be the ones open to hearing this case, we're caucusing among themselves, discussing with each other and trying to figure out if they had the votes to make a credible attempt to chip away or overturn the holding in Row. How do we know that? Well, we know it because it would be a disaster from the perspective of the Conservative justices if the Supreme Court were to hear a case in which the core holding of Rowe view Wade was challenged by a state law and then uphold the law. Really, for two generations of legal conservatism, Rowe has been a central target, and any reaffirmation of the holding of Row is a massive setback, indeed, potentially a generational setback for those Conservatives. That means that the Conservatives would not even consider hearing a case like this unless they had a growing degree of confidence that they could get five votes minimum that would substantially undercut the holding of Row. How would they do so? Well, here we have one further clue, and that's a clue derived from the way the Supreme Court justices said they would hear the case. When the parties came before the Supreme Court seeking review, they wanted the Supreme Court to consider a range of questions, but the justices narrowed it down to a single question, and here's what they said. The Court will decide, quote, whether all pre viability prohibitions on elective of worsens are unconstitutional. That is a question that, if it were to be answered yes, would be a major setback to the Conservatives, And so the Conservatives must believe that they can get at least five votes and maybe more to shift the Supreme Court's view on that question. There is a tiny possibility that the Conservatives just have it wrong and that four justices will be unable to convince one further justice to substantially undercut the holding of Row, But that seems very, very very implausible given the deliberation and the time that went into the process of the Supreme Court deciding to hear the case. Here. We'll be talking more about the legal details of this case in this coming year on deep background. For now, I'm hoping you can see just how much information can be gleaned from the inside Baseball in the weeds analysis of how the Court comes to reach decisions. Until the next time I speak to you here on deep background, be safe and be well. That's all for today, Pushnicks. Thanks for your support and watch your feed for additional bonus content.

Pushkin. Hey, they're Deep Background listeners. It's Noah Feldment. Every other week, I'm going to be releasing bonus episodes of Deep Background via Pushnik, the new subscription program you'll find on Apple podcasts. We're calling these episodes Noah Riffs, and many of them will focus on the Supreme Court, whether it's the upcoming challenge to Rov Wade or decisions about juvenile offenders and life imprisonment. I will try to explain the inner workings of the Court to you and connect the wise and the house behind every move. I'll also touch on other developments in the news, like most recently, the shifting power structure in Israel. When you subscribe to pushnik for four ninety nine a month, you'll get bonus content like Noah Riffs, as well as uninterrupted listening across fourteen shows in the Pushkin industry's catalog, including Malcolm Gladwell's Revisionist History and Jill Lapour is the last archive. Search for Deep Background and Apple podcasts. Visit our show page and sign up there. It's easy and you can try it free for seven days. You're about to hear the first in that Nowhere Riff series about how a major case on abortion rights is making its way to a landmark hearing before the Justices. When the case is heard in the coming fall, it will be a direct threat to the fundamental right to abortion and trying to Row v. Wade. It's going to be major, and I hope my observations help you understand how it's all taking place. Pushkin Welcome Pushnick subscribers. This bonus episode of a Deep Background is exclusively available to you on Apple Podcasts subscriptions. Thanks for being a Pushnick. You'll see a more bonus content like this in your fee, and you can always listen to Pushkin shows ad free from Pushkin Industry. Is This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman today a special bonus episode, the first in a series of bonus episodes exploring the inner workings of the US Supreme Court. Why it does what it does, how it does what it does, and how the why and the how connect. In late May, the Supreme Court announced that sometime in the fall, it will hear argument in a case called Dabbs against Jackson Women's Health Organization. Their Justice has said yesterday they will decide if a new law in Mississippi is constitutional. It would impose the strictest state limits on abortion since the Roe versus Wade decision forty eight years ago. Jan Crawford is at the Supreme Court that case name may not mean anything to you now, but I promise you it is going to at issue twenty eighteen Mississippi law that would ban almost all abortions after fifteen weeks of pregnancy. The law, as written directly contradicts the core holding of Roe v. Wade, Good Evening, in a landmark ruling, the Supreme Court today legalized abortions the majority in cases from Texas and Georgia's. As you recall, in a Rovuwade, the Supreme Court held that a state lacks the legal authority to prohibit abortion before what the court called viability. That is, the moment when a fetus could survive with or without medical assistance outside the womb. The date of viability is usually thought to be twenty three to twenty four weeks. That means fully eight or nine weeks after the time that the Mississippi law would already prohibit abortions from occurring. Now, after the state of Mississippi paw that law. Challengers immediately went to federal court, and in due time the US Court of Appeals for the Fifth Circuit struck down the law because bluntly it violated Roe v. Wade. The reason everyone will be talking about this case is that, in an ordinary course of business, the Supreme Court doesn't agree to review decisions where it knows that the Court of Appeals got the issue right and when there's no controversy among different courts of appeals about what the state of the law is. In this instance, we know there's no controversy among different courts of appeal. The rule of Roe v. Wade is clear, and the lower courts have not been flouting Supreme Court precedent. That means that if the Supreme Court decided to hear the case, it must be that some number of justices believe that the time has come to undercut and maybe even overturn the cent role holding of Row. So what can we say about how the Supreme Court justices are thinking? How can we read the tea leaves? Now? Usually when you think about the Supreme Court, only one number matters, and that number is five. Five is a number of justices. It takes to get a majority of the court and to win your case. But when it comes to the Supreme Court deciding to hear a case, the number shifts from five to four. Here is what is called by Supreme Court insiders the rule of four. The rule of four says that it takes the vote of four Supreme Court justices, not five, to decide to hear a case. So, if in the Justices conference, which is what they call their meetings to discuss what cases they're going to take and what to do about the cases they have, the Supreme Court justices vote on whether to take a case, it takes four justices. If four justices say they want to hear the case, the case gets hurt. So what does that tell you? When the news comes out that the Supreme Court has decided to hear a case, it tells you, at minimum that four justices wanted the Court to hear it. Now, as it turns out, there's more information that is available to the general public to figure out when and why the Supreme Court made a decision like this, and that information lies in the Court's docket. The otherwise dry as dust, entirely boring list that tells you on what date, what event happened with respect to a Supreme Court decision. Now, in the case of Dabs against Jackson Women's Health, a close look at the docket reveals that this case first came before the justices in the early summer of two thousand and twenty. That time matters because at that time Justice Ruth Bader Ginsburg was still alive and the conservative justices on the Court were unable to be certain that they would or would not be able to get five votes to over turn some core holding of Roe v. Wade. Then, if you look at the docket, you can see that the Supreme Court began a series of delaying processes and tactic. The first time the Supreme Court justices could realistically have sat down in conference and had a discussion about whether they should hear this case was September twenty nine, twenty twenty. We know that because in the docket we know that on September second, the materials for the case were distributed and planned for the September twenty nine conference. But on September eighteen, twenty twenty eleven, days before the case was supposed to be discussed at conference, Justice Ginsburg passed away the Court consequently, at less than full strength, decided to reschedule its discussion of the case, and it did that several times. First it was rescaleded for October fifth, then October fourteenth, then October twenty ninth, then November fourth. While all of this was happening, the country was focused on the nomination of Amy Coney Barrett to replace Kinsburg and ultimately her confirmation, which took place on October twenty seven. The Yeasier fifty two the Naser forty eight, the nomination of Amy Coney Barrett of Indiana to be an Associate Justice of the Supreme Court of the United States is confirmed. Looking back to the docket, the Court still did not decide whether to hear the case. They rescheduled again November tenth, November eighteenth, December one, December nine, and then they began scheduling conversation to take place each month in January, in February, in March, in April, and finally, finally, finally, on May seventeenth of twenty twenty one, after Justice Barrett had been on the court for several months, the Court sided to hear the case. Two insiders who spend their time trying to read the tea leaves and see what the Supreme Court is going to do. These docket lists are telling pieces of evidence. What they tell you here is that the Conservative justices, who have to be the ones open to hearing this case, we're caucusing among themselves, discussing with each other and trying to figure out if they had the votes to make a credible attempt to chip away or overturn the holding in Row. How do we know that? Well, we know it because it would be a disaster from the perspective of the Conservative justices if the Supreme Court were to hear a case in which the core holding of Rowe view Wade was challenged by a state law and then uphold the law. Really, for two generations of legal conservatism, Rowe has been a central target, and any reaffirmation of the holding of Row is a massive setback, indeed, potentially a generational setback for those Conservatives. That means that the Conservatives would not even consider hearing a case like this unless they had a growing degree of confidence that they could get five votes minimum that would substantially undercut the holding of Row. How would they do so? Well, here we have one further clue, and that's a clue derived from the way the Supreme Court justices said they would hear the case. When the parties came before the Supreme Court seeking review, they wanted the Supreme Court to consider a range of questions, but the justices narrowed it down to a single question, and here's what they said. The Court will decide, quote, whether all pre viability prohibitions on elective of worsens are unconstitutional. That is a question that, if it were to be answered yes, would be a major setback to the Conservatives, And so the Conservatives must believe that they can get at least five votes and maybe more to shift the Supreme Court's view on that question. There is a tiny possibility that the Conservatives just have it wrong and that four justices will be unable to convince one further justice to substantially undercut the holding of Row, But that seems very, very very implausible given the deliberation and the time that went into the process of the Supreme Court deciding to hear the case. Here. We'll be talking more about the legal details of this case in this coming year on deep background. For now, I'm hoping you can see just how much information can be gleaned from the inside Baseball in the weeds analysis of how the Court comes to reach decisions. Until the next time I speak to you here on deep background, be safe and be well. That's all for today, Pushnicks. Thanks for your support and watch your feed for additional bonus content.