We are again indebted to the author for a painstaking look at the record, powerful analysis, and clear exposition of a case I would otherwise understood only superficially. His reticence about explicitly criticizing Sen Hawley's wife is forgivable since as Marty’s comment shows a reader can easily see her unprofessional dishonesty in a case she volunteered to argue.
Thanks for the detailed discussion of the evidence, or lack of it, provided by the plaintiffs here. I've seen innumerable articles dissecting the standing arguments but few get as far as you in looking at the merits
As someone who followed this at the District Court and 5C (and am deeply appreciative for Adam's coverage), I could finally breathe a little bit after SCOTUS arguments because (it seems like) there's finally a judicial body in this country who sees this standing argument for the lobotomizingly stupid flimflam that it is.
"If you're a doctor and the government does something that might send you a patient to treat (you know, that thing doctors are paid to do), you have standing!"
Another standing argument that I would have liked to heard about at oral argument was the “forced to violate my conscience” angle.
If a patient presents in the ER and does not need an emergency abortion, the plaintiff-doctors will delay the abortion until another doctor is available. Fine.
If a patient presents in the ER and needs an emergency ambition, the plaintiff-doctors will do the procedure if not other doctor is available. The plaintiff-doctors say they are “forced” to do this.
But a patient might need an emergency abortion for many reasons! Maybe the patient was in an accident. Maybe the patient attempted suicide. In these situations too, the plaintiff-doctors would presumably be forced to perform an emergency abortion.
So the plaintiff-doctors don’t really object to performing emergency abortions. They only object when the patient’s underlying medical condition was caused by an abortion drug.
You gave the plaintiffs and their zealot lawyers the undeserved credit of taking their arguments seriously. This case was garbage from jump, using a cherry picked trial judge and an appellate court that albeit reactionary countenanced a bare minimum of his absurd order. Even so they had to rely on the flimsy ground that the sought injunction was only “preliminary” and thus subject to relaxed standards of proof.
Thank you for your analysis. Insightful, as always. That said, and with all due respect, excellent lawyering requires knowledge of and respect for facts. Yes, arguing a case in front of Supreme Court justices is stressful and challenging. It demands an exceptional knowledge of the law and an ability to persuasively argue its application to a defined set of facts. It is particularly challenging when the facts are weak or, as in this case, contrary to settled law. The justices may pose hypotheticals that suggest weaknesses in your arguments. That, of course, demands such thorough preparation that you can nimbly react to alternative scenarios. But the starting point should always be the facts, which is precisely what the Justices were seeking to clarify. Inventing facts to suit your argument does not demonstrate excellent lawyering. It demonstrates either laziness (a failure to have mastered the facts of your case), incompetence (an inability to construct an argument that is consistent with the facts of your case) or dishonesty (a willingness to fabricate facts.)
An excellent lawyer would have found an argument for “standing” that is consistent with the facts of the plaintiff’s case or would have crafted an entirely new definition of “standing” that would both be consistent with the plaintiff’s facts AND acceptable to at least five of the justices.
Adam's analysis of standing, and the questions asked of Hawley, were all strong arguments against these plaintiffs having standing. But implicit in that analysis, I think, was the assumption that SOMEONE might have standing. To my shock, Alito asked a question of the SG that I kinda agreed with, which was: would anyone have standing to challenge the FDA about this rule? SG Prelogar essentially said no one would.
While an Article III case is hardly the only way to challenge a law - winning elections is another one - it is an important check on executive power. So it does seem odd that no one could have standing in this case.
We are again indebted to the author for a painstaking look at the record, powerful analysis, and clear exposition of a case I would otherwise understood only superficially. His reticence about explicitly criticizing Sen Hawley's wife is forgivable since as Marty’s comment shows a reader can easily see her unprofessional dishonesty in a case she volunteered to argue.
Thanks for the detailed discussion of the evidence, or lack of it, provided by the plaintiffs here. I've seen innumerable articles dissecting the standing arguments but few get as far as you in looking at the merits
As someone who followed this at the District Court and 5C (and am deeply appreciative for Adam's coverage), I could finally breathe a little bit after SCOTUS arguments because (it seems like) there's finally a judicial body in this country who sees this standing argument for the lobotomizingly stupid flimflam that it is.
"If you're a doctor and the government does something that might send you a patient to treat (you know, that thing doctors are paid to do), you have standing!"
Another standing argument that I would have liked to heard about at oral argument was the “forced to violate my conscience” angle.
If a patient presents in the ER and does not need an emergency abortion, the plaintiff-doctors will delay the abortion until another doctor is available. Fine.
If a patient presents in the ER and needs an emergency ambition, the plaintiff-doctors will do the procedure if not other doctor is available. The plaintiff-doctors say they are “forced” to do this.
But a patient might need an emergency abortion for many reasons! Maybe the patient was in an accident. Maybe the patient attempted suicide. In these situations too, the plaintiff-doctors would presumably be forced to perform an emergency abortion.
So the plaintiff-doctors don’t really object to performing emergency abortions. They only object when the patient’s underlying medical condition was caused by an abortion drug.
You gave the plaintiffs and their zealot lawyers the undeserved credit of taking their arguments seriously. This case was garbage from jump, using a cherry picked trial judge and an appellate court that albeit reactionary countenanced a bare minimum of his absurd order. Even so they had to rely on the flimsy ground that the sought injunction was only “preliminary” and thus subject to relaxed standards of proof.
Thank you for your analysis. Insightful, as always. That said, and with all due respect, excellent lawyering requires knowledge of and respect for facts. Yes, arguing a case in front of Supreme Court justices is stressful and challenging. It demands an exceptional knowledge of the law and an ability to persuasively argue its application to a defined set of facts. It is particularly challenging when the facts are weak or, as in this case, contrary to settled law. The justices may pose hypotheticals that suggest weaknesses in your arguments. That, of course, demands such thorough preparation that you can nimbly react to alternative scenarios. But the starting point should always be the facts, which is precisely what the Justices were seeking to clarify. Inventing facts to suit your argument does not demonstrate excellent lawyering. It demonstrates either laziness (a failure to have mastered the facts of your case), incompetence (an inability to construct an argument that is consistent with the facts of your case) or dishonesty (a willingness to fabricate facts.)
An excellent lawyer would have found an argument for “standing” that is consistent with the facts of the plaintiff’s case or would have crafted an entirely new definition of “standing” that would both be consistent with the plaintiff’s facts AND acceptable to at least five of the justices.
Adam's analysis of standing, and the questions asked of Hawley, were all strong arguments against these plaintiffs having standing. But implicit in that analysis, I think, was the assumption that SOMEONE might have standing. To my shock, Alito asked a question of the SG that I kinda agreed with, which was: would anyone have standing to challenge the FDA about this rule? SG Prelogar essentially said no one would.
While an Article III case is hardly the only way to challenge a law - winning elections is another one - it is an important check on executive power. So it does seem odd that no one could have standing in this case.