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This week’s episode is going up a day early as we had to call Happy Hour for Thursday evening on account of scheduling problems, and Steve and Lucretia welcome to the bar the noted Bourbon drinker and McRibb connoisseur John Yoo. (He’s also apparently a law professor somewhere.)
We review a few of the tea leaves from last week’s Supreme Court oral argument in the Dobbs case, but use this momentous case to talk more broadly about the whole problem of stare decisis (“let the decision stand”) in our jurisprudence. Along the way we entertain some seriously heterodox views, such as the proposition that Brown v. Board of Education never actually overturned the “separate but equal” doctrine of Plessy v. Ferguson. It it has done so, we wouldn’t have the messy regime of quotas and affirmative action today.
We also speculate on whether there might actually be leaks from somewhere inside the Court ahead of the decision—something that rarely or never happens—because the liberal justices are desperate to do anything to derail an overturning of Roe (which, Steve argued to John, is the “McRibb sandwich of modern jurisprudence: a compressed confection of offal cuts slathered with sauce to disguise its true awfulness”). Finally, we discuss the “crisis of the conservative legal movement” and what might happen to it if the Court muffs the Dobbs case.
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