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Wednesday, December 07, 2005 

Ayotte Oral Argument

I'm exhausted from my marathon study sessions and three back to back to back exams. I'm lucky that I can sit up right now. Any posting that I can do is nothing short of a miracle. I do think my Ethics exam went very well, so I'm running on enough adrenaline to pound out a post or two.

The Ayotte v Planned Parenthood oral argument was incredibly interesting. Attorney General Ayotte sounded very nervous. Her voice was quaking for most of her oral argument. Hell, I don't blame her. She's arguing her first case before the Supreme Court, and the case has national attention. If I was in her position, I probably would've been throwing up in the bathroom until Court was in session. When under extreme pressure, my voice has also been known to get a little shaky at times too. I totally empathized with Ayotte.

She made some big slip ups about her office's viewpoint and the text of the law itself, and Justices Souter and Ginsburg went after her. I don't think there is any mystery concerning their viewpoints on the case. SG Clement was his usual self, taking it from the Justices but still giving it back to them. Dalven, the lawyer for Planned Parenthood, focused on one argument: invalidate the law and send it back to the legislature. Tactically, I think this was a good move. Be specific about what you want, make your case, and don't let the Justices trick you into overextending your argument. Unfortunately for her, I think she overextended. She claimed that there "wasn't a minute to lose" when the doctor has to decide if an emergency abortion is needed. Justice Scalia wondered if that dire situation prevented the doctor from gloving up. After all, there isn't a minute to lose, right?

Beyond the case itself, I thought the oral argument was interesting because of the new Chief Justice. This was the first time that I heard Chief Justice Roberts during oral argument. He questioned Dalven about having the doctors bring a pre-enforcement challenge to the law's Constitutionality concerning the lack of a health exception. The Chief viewed that as an as-applied challenge, not a facial challenge like this suit. Justice Scalia seemed to support this view, while Justices Ginsburg and Stevens thought that the cases would be the name (aside from the doctors' names being substituted for Planned Parenthood's). Prof. Althouse comments on the "Roberts Court Style"...
Roberts seems to have instantly emerged as the dominant voice at oral argument. And he seems to have a way of slamming lawyers in the face with his own clearly stated opinion. Tell me why this is wrong, right now, or forget about it. I hope to see much clearer written opinions from the rejuvenated Court too.
There's no foreplay in the Roberts Court.

I expect this to be a close case. I also expect Justice O'Connor to be retired before the decision comes down. My third expectation is that this case will be held over for reargument until next term.

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About me

  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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