Switching to writing full-time would definitely not be a wise career move, but I’d do it if I thought I had the talent. As it is, I’ll be happy if I can just sell one or two more stories some time.

And I agree with you — none of the Supreme Court judges is an idiot. My difference with Scalia and Thomas in particular is based on their moral philosophy, not their lack of brainpower. If anything, it’s the combination of high intelligence and rigid moralism that I find so distasteful.

Can I recommend a book to you? Last year I read a history of the Nazi sabotage plot in America called, amazingly, “Saboteurs: The Nazi Raid on America” by Michael Dobbs. It starts out like a standard espionage tale but quickly blossoms into a nuanced study of American criminal law with precedents that have big repercussions today.

And there’s no need for modesty. Mendelsohn’s anthology is a really cool place to be published. Anyone with a semi-professional sale is already in the top percentile of writers.

I think it was Melinda Snodgrass who pointed out that according to IRS data, there are more people whose primary occupation is listed as Senator than Author. As someone who has already taken on the Supreme Court twice, are you sure this is a smart career move? :-)

I’ve been to the Supreme Court twice, both times after the Court granted a petittion for writ of certiorari that I wrote. That’s the real bragging point — the Supreme Court only grants about 1 out of 50 of the petitions it receives.

The first case was a securities fraud case (Central Bank of Denver v. First Interstate Bank). I wrote the briefs, then sat at counsel table while my boss presented the oral argument (best seat in the house!). That’s the one in which we argued that the Supreme Court should read the securities fraud statute differently than every other American court since 1934 had read it, and by a 5-4 decision they did.

In the second case, I wrote the briefs and this time got to argue it myself. It was a disability discrimination case (Sutton v. United Air Lines), and I was arguing for a broad interpretation of the Americans with Disabilities Act, which was a tough sell to the Court. Justice Scalia was on the attack the whole time. I honestly thought I won the argument with him and showed that his position was illogical, but he got the last laugh. I lost on a 7-2 decision.

Cases are really won and lost on the briefs, but the oral argument is the most fun part of the process. The atmosphere at the Supreme Court is much more formal and forbidding than any other American courtroom — even in the gallery, someone will tap the back of your chair if you’re not sitting up straight.

You only have 30 minutes to make your argument, which evaporates in a hurry, because the justices fire questions at you non-stop the whole time. I’ve listened to old oral arguments from major cases like Roe v. Wade and Brown v. Board of Education, and it used to be that the justices would actually let the lawyers talk for a while and be orators, which made me envious. These days it’s just rapid-fire questioning and you have to try to weave your key points into your one- and two-sentence answers. Incidentally, Justice Thomas has said publicly that he preferred the old way, which is why he seldom asks questions in oral argument, but many people still assume it’s because he is stupid.

None of the Supreme Court justices is stupid. I have argued in many courts, and there are usually at least a couple questions that go off on a tanget, and you have to explain to the judge why that’s not really the issue. At the Supreme Court, every question goes right to the heart of the matter. Of course, having a staff of clerks all of whom are #1 in their classes at the top law schools doesn’t hurt.

The best part about the Supreme Court experience is that I used it in a story that recently appeared in Farah Mendlesohn’s anthology Glorifying Terrorism. I have a long way to go to catch up to you, Chris, but it’s a start.

As to whether the American legal system is in dire need of a culture change, I definitely can’t debate you about that!

Don’t worry about jumping down my throat. It’s been jumped down so many times I have stretch marks on my larynx. It’s a pleasant change to talk about these issues without it degenerating into a flamewar.

As for the statute vs. the Court ruling, well, I don’t like either. Could you tell? These are two separate issues, and I’m glad not to have to debate the former because, frankly, I’m sick of hearing the same old arguments go around and around and around to little persuasive effect. Whether or not the Bill is constitutional in US law is obviously not my area of expertise, and I readily acknowledge that there are many bad laws in democracies all around the world that are nevertheless constitutional. I am still deeply concerned about the way the majority opinion is framed, and I’m particularly concerned about the justices’ cavalier approach to difficult issues.

If they had said, “the issues are complex and it is not our place to resolve them, but the Bill is constitutional,” then I would still be unhappy with the outcome but could respect the decision and leave it to a more liberal Congress to overturn the legislation. What I see instead can be summarised as “the issues are complex, and in this complex situation, we choose to dismiss arguments we don’t like without grappling with them, rely in part on evidence that has been demonstrated to be factually erroneous, replace the well-established health exclusion with the undefined ‘life-threatening’ standard (which is not as unambiguous as the justices would like to think), redefine ‘undue burden’ to be useless in any practical sense (as if a woman who might benefit from an iD&E has the time, money, or emotional capacity to take on a major legal adventure to get permission beforehand), and quote dubious rhetoric, edited to be outright propagandist, sometimes on aspects of the case that have no bearing whatsoever to the issue of the Bill’s constitutionality.”

Whether the majority justices (or the minority justices for that matter) are acting within accepted legal principles is a judgement better left to people with a firm grasp of US constitutional law. But if these are accepted principles, then the legal system is in dire need of a culture change.

Whether it was a good idea to pass this statute and whether the Supreme Court should have struck it down as unconstitutional are two very different issues. I thought your post was intended as a criticism of the Supreme Court, which goes to the second issue. If your real complaint is simply that you don’t like the statute, that goes to the first issue, which I have no interest in debating.

I thought I made it very clear that this post dealt with the medical aspects of the case, not the legal side.

You say that the Court did not criminalise the procedure, Congress did. Sure. But Congress’s Bill was overturned before and this time around the Court allowed the Bill through. To say that the Court did not therefore criminalise iD&E is the sort of hair-splitting that needs an electron microscope and a laser scalpel.

You say that Charo criticises the Court for overturning state decisions. But that is not what Charo says. Of course the Supreme Court is a higher court and therefore will overturn state findings on a regular basis. But Charo criticises the court for relying on evidence that was factually incorrect. This seems to me to be a perfectly fair criticism. The fact that this evidence of error came out of state trials seems to me to be irrelevant. The Supreme Court may be a higher court in the legal hierarchy, but I fail to see how factuality can be overturned on the basis that it was demonstrated in a lower court.

Again, you did not read me very carefully about the legality of the procedure. I said that what Dr Haskell did would have been perfectly legal if the foetus had been killed while still in the birth canal. I could have worded it better — and I’ll go back and reword it soon — but the meaning is exactly correct, so I don’t find it a particularly useful observation.

And yes, I am complaining about the emotional tone of the majority opinion. It is not that the opinion is emotional per se, it is the choice of emotive material that is inappropriate, especially as this particular quote was misleading in the first place and presented in such a way as to make it even more misleading than the original testimony. You’re correct that I don’t read a lot of US Supreme Court judgements, but it seems to me that using dishonest rhetorical devices deserves condemnation. And if the Court’s justices “consistently indulge” in such devices then I would have called this a grave cause for concern, not an absolving factor.

The Supreme Court held that the statute is not facially invalid, but may ultimately prove invalid as applied, if it is shown that in individual cases it is detrimental to women’s health. This does not ignore medical evidence. The court was not trying to decide the medical question of whether the iD&E procedure is ever necessary, as opposed to the other available alternatives. The Court expressly recognized that medical opinion is divided on that question, and left it to future cases to resolve the issue based on specific facts presented.

I can only find two criticisms in your post of the Supreme Court’s legal analysis. First, you quote from Charo that this is a “singular” case in that the Supreme Court ignored the findings of multiple state trial courts. This is laughable. The Supreme Court could not possibly care less about state trial court findings in other cases. The Court doesn’t much care about federal trial court findings, and often disregards federal circuit court findings. I say this from experience — I won a case in the Supreme Court on an argument that had previously been rejected by literally thousands of lower court cases.

You complain at length that the Supreme Court opinion is emotionally charged. You are correct. (Although I don’t understand your assertion that the gruesome procedure described is legal under the Act. The nurse’s testimony was that the baby’s — I suppose we should say the “fetus’s”; it wouldn’t be a “baby” until many seconds later — arms and torso emerged before it was killed, which is illegal under the Act.) Both the conservative and liberal members of the Supreme Court consistently indulge in rhetorical devices in their opinions, including appealing to emotion. Anyone who expects Supreme Court opinions to state the issues in an entirely objective and unbiased manner has not read many Supreme Court opinions.