The growing divide between conservative lawyers and those who are performing artists has been one of the most intriguing in the conservative legal movement. The conservative justices will soon have to decide which side they are on. With the filing of a brief last week asking the Supreme Court to reverse Roe v. Wade, Mississippi forces the three newest Trump-appointed judges to choose between institutional stability or law that promotes right-wing internet memes.AdvertisementIn the last year, there have been many examples of the former. Rudy Giuliani's license to practice law was temporarily suspended twice last year due to his stellar turns as an all-purpose lawyer for crazy things. A brief was signed by 17 Republican lawyers general supporting a lawsuit filed by Texas Attorney General Ken Paxton to invalidate the 2020 election. This was due to Rudy Giuliani's star turns as an all-purpose lawyer for crazy stuff. One more exhibit is the numerous lawsuits that Trumps Kraken lawyers Lin Wood, Sidney Powell have filed. They face possible legal sanctions for their efforts to advance his false claims of a stolen electoral election.AdvertisementAdvertisementAdvertisementThese filings show the hallmarks of litigation as envisioned by a.m. radio hosts: maximumist claims, poor command of legal doctrine and disregard for precedent. They also rely on claims from the internet as facts. There is also a lot of trolling by own the libs. These filings are becoming more distressingly filled with the signatures of state attorney generals who use the courts to further their political careers and not a coherent theory or justice. Mark Joseph Stern explained why nearly a third of nations' attorneys general signed on to an ineffectual effort to undermine democracy last December. These lawyers manage large agencies that deal daily with complex legal disputes. The job requires a level that is impossible to meet for someone who has a complete disconnect with reality. It is reasonable to assume that these attorneys general act as rational actors and politicians who are looking out for their best interests. These AGs are subject to independent legal obligations and have ethical rules that prohibit them from signing on to frivolous pleas. This is more important than helping Trumps and their future electoral fortunes.AdvertisementSubscribe to the Slatest Newsletter Get a daily email update with the latest stories. Signing you up was not possible due to an error Please try again. To use this form, please enable jаvascript. Email address: I would like to receive updates on Slate special offers. You agree to our Privacy Policy & Terms by signing up. Thank you for signing up! You can cancel your subscription at any time.At least some of the legal pleading in the brief that Lynn Fitch, Mississippi Attorney General, filed in Dobbs, v. Jackson Womens Health Organization on Thursday shows signs of being serious. This is the most consequential case involving abortion over the past three decades. It does not mention unsourced conspiracy theories and contains case citations. It does contain some obvious whiffs of Kraken. Not least the fact that the state specifically asked the high court for Roe v. Wade to be overturned and Planned Parenthood. This request, which was only the third time that a main brief had asked the court to reverse Roe, and the first in 30 years, was a politically motivated swing directed against a court that might not be inclined this fall to take a large politically motivated swing at Roe.AdvertisementDobbs focuses on the constitutionality and ramifications of Mississippi's Gestational Age Act. This law was passed in 2018 along with a host of other unconstitutional anti-abortion laws. This act prohibits abortions after 15 week gestational age, except in cases of severe fetal abnormality or medical emergency. It also does not allow for exceptions in cases of rape and incest. The only clinic in the state challenged the law and a federal appeals court ruled that it was an unconstitutional ban. After much deliberation, the Supreme Court agreed to hear the case in May. It stated that justices would be exploring whether states should have the right to prohibit abortion before fetal viability (which occurs at 24 weeks). The Supreme Court has used viability as a dividing line to decide when a state may ban abortion. States must allow abortion before viability (although they can impose some barriers); states can ban abortion after viability if there are exemptions for the patient's life and health. The arguments will take place in November and December, with a decision expected before July.AdvertisementAdvertisementFitch's brief is an astonishingly extreme theory that ignores precedent. It claims that the stare decisis case to overrule Roe and Casey has been overwhelming. This is five times more than what Roe v. Wade actually says. The brief requests that the court overturn all abortion rights decisions made in the past half century. This casual trolling is truly epic. Justice Ruth Bader Ginsburg is invoked to back the assertion that Roe and Casey have caused significant damage to the country. Roe is accused of starting a culture war in the country that was actually started almost entirely by Phyllis Schlafly and Pat Buchanan. Roe, Casey and their descendants are not precedents because they had fractured opinions. It claims that abortion jurisprudence is harming the Nation. Trolly.AdvertisementA Louisiana law that would have decreased the number clinics in the state was struck down by the Supreme Court just over a year ago. Five years ago, a Texas law would have reduced the number clinics by three-quarters. The state attorneys general of both Louisiana and Texas, who are outspoken and politically motivated anti-abortion conservatives, did not urge the court to use Roe to end the cases. What happened?AdvertisementThere are many things. One, the Mississippi law in question in this case is just one of many extreme anti-abortion laws which have been sweeping the country over the past two years. Despite the fact that fetal viability currently stands at between 23-24 weeks, abortion has been banned in states at 15 weeks (Mississippi), 12 weeks(Arkansas), 8 (Missouri), 6 (Ohio and Georgia) and at conception (Alabama Louisiana, Utah). These new laws do not stem from state health solicitude, but rather a desire to end legal abortion. Dobbs is the first case that addresses direct Roe attacks at the Supreme Court.AdvertisementThe most important change is that Trump was able, during his presidency, to appoint three additional Justices to the court. While all three were established conservative jurists when they were appointed to the court, Trump made sure that their careers and reputations were reoriented by appointing them. Fitch was informed by Trump that one of his main goals in court appointments was to appoint justices that would overturn Roe. This was the exact message that a Trump loyalist was sent. She did. She may not have realized how hard the Trump justices worked to prove that they were not partisans, not shoddy hackers, and not as brazen political actors that their party promised. Fitch put on a huge partisan fireworks show that was more beneficial to her career and image than the Trump justices, just as Barrett's last term demonstrated that minimalism and moderation are the star lodestars in certain areas. Perhaps that was the intention.AdvertisementAdvertisementAdvertisementFitch received a lot of attention last week for her Trump-styled arguments. It is difficult to say if it influenced the Supreme Court to grant her relief. The Trump three have been trusted conservative votes on the court so far, but they have not always walked the party line. Gorsuch was the one who made the pivotal 2020 decision giving LGBTQ people equal rights at work. Kavanaugh, now the court's median justice, cited something similar to the public perceptions of critical race theory in supporting college athletes against NCAA. Barrett did not overturn a precedent regarding religious liberty that has been a conservative hot topic for decades. There is no doubt that these three conservatives are right-leaning. Are they bomb-thrower justices like Clarence Thomas and Samuel Alito? Are they more likely to take smaller, less publicized steps in order to achieve larger conservative goals and still respect half a century worth of precedent? They have the option of making this choice now that Mississippi has clearly made it clear.AdvertisementAbortion rights activists seeking to see Roe were outright delighted by the open-faced filings of the AGs. Many argued that Mississippi had no other option and applauded that the brief didn't hide its true goals. There is some doubt that five or four votes are available at the high court to reverse Roe's decision just weeks before the 2022 midterm election. The Trump justices will decide how strongly they support the church of Trump and not the Supreme Court.
