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Dashed-Off Daily Dobbs upDate: Oral Arguments Day, But Calmly Now (Part II)
Whenever big news breaks in either of 2021’s Supreme Court abortion cases—Dobbs v. Jackson or Women’s Health v. Jackson, and no they’re not the same Jackson—I dash off a quick update. I don’t really check for typos and I rarely add links, because I know you just want to know what’s going on, instead of waiting my usual three days to make it long and pretty.
Well! That… went really well. As well as anyone on the pro-life side had any right to expect, anyway. (Here’s the transcript.)
In my last update, I set some guideposts for how the oral arguments might go, and I said we could learn a lot from which justices push for a “compromise” decision that upholds the Mississippi 15-week abortion ban but somehow saves Roe/Casey. If the right-wing justices (Alito/Gorsuch/Thomas) are talking compromise, it likely means the Mississippi law is on the ropes, and the right is fighting to save what it can. If the left-wing justices (Kagan/Breyer/Sotomayor) are talking compromise, then it likely means Roe/Casey is on the ropes, and the left is fighting to save what it can. But my default expectation was that the court’s center (Barrett/Kavanaugh/Roberts) would be talking compromise and trying to sound out whether some compromise would be workable, while the left and right sides of the court would proxy-debate each other about stare decisis for an hour.
Well, the court’s biggest centrist was looking for a compromise. Chief Justice Roberts kept trying to find a way to keep the 15-week ban without overturning Roe/Casey. He seemed to probe the idea of a new abortion standard where everyone gets “enough time to choose” whether or not to kill their children—so a 15-week ban would be okay (because you have enough to time to choose abortion), but a 6-week ban (early enough that a substantial minority of women don’t even know they’re pregnant yet) would be struck down. Roberts also tried to suggest that the viability line in Casey was mere obiter dicta—judicial musings—rather than a binding part of the ruling, and so could be subject to change. The Roberts’ outta-left-field ruling was clearly on the table for him.
But nobody wanted to play ball with him.
Barrett and Kavanaugh abandoned Roberts to handle the center all by himself. They each spent most of the oral arguments trying out different lines of justification for overruling Roe/Casey. Kavanaugh tried a number of different takes on “judicial neutrality” and the importance of returning hotly contested issues to the states if there is no constitutional justification for the Court’s interference. Barrett focused squarely on burrowing into and exploding the idea that Roe/Casey created a “reliance interest”. (This is the idea that some bad precedents should not be overturned because too many people depend on them; a classic example is the Legal Tender Cases.) Oral arguments are often deceptive, but it seemed Barrett and Kavanaugh—both very young justices still quite new to the bright spotlight of the Supreme Court—were clearly testing out how those arguments will play to the public when they join a majority opinion overturning Roe/Casey. Justice Gorsuch, for his part, used a chunk of his oral argument time to get the abortion clinic lawyer to close off possible “escape routes” for a Roberts compromise solution (which Ms. Rikelman, the lawyer, happily did).
Meanwhile, every overture Roberts made to the left side of the Court or the abortion clinic’s lawyers got firmly rebuffed. No compromise solution is possible, they unanimously insisted: either the Mississippi law has to go or Roe/Casey has to fall. This seems foolish as a matter of raw politics: if the left side of the Court hopes to get five votes, they will almost certainly have to come up with some kind of compromise that weakens but preserves Roe/Casey. But if they don’t think they can get five votes no matter what they do, they might not bother. That’s my best read of their attitude today.
In particular, Justice Elena Kagan is Roberts’ most reliable partner in the judicial compromise business, routinely joining Roberts to form a plurality that sacrifices some things in order to prevent the Court’s right flank from writing a broad, controlling majority opinion. But Kagan was almost silent today, leaving most of the work to Sotomayor.
Speaking of whom, Sotomayor was flailing. She made the absurd suggestion that Mississippi was, by banning abortion before viability, imposing a religious rule, because some philosophers and religions still debate the moral value of pre-viability fetuses. Mississippi’s lawyer fumbled the response, even after Alito tried to help him out, but is this not clear to everyone? Our society guarantees inalienable rights to all human beings (e.g. “The Universal Declaration of Human Rights”; “all men are created equal”, etc.), and it is a totally settled scientific question that fetuses become human beings at conception, and at no time before or after. If anyone’s opinion in the abortion situation is a “religious” opinion, it’s the pro-choice theologians and philosophers who try to smuggle the idea of a human soul into the argument by suggesting (in ever so secular terms) that the fetus can be a human organism but not a human person. That’s an ensoulment argument, however you want to dress it up in talk about brain function.
Of course, this simply lays bare the heart of the whole small-l liberal project launched by the Enlightenment: liberalism pretends to be morally neutral in order to win huge triumphs against traditional morality without having to actually face those arguments directly. Sotomayor tries to loudly expel moral philosophy from the abortion debate even as she tries to sneakily inject more agreeable moral philosophy into it—the only irony is that Mississippi genuinely isn’t depending on any moral philosophy in this argument! But watch Sotomayor the next time she does a death penalty case or a racial segregation case or a same-sex marriage case: all of a sudden, she will be full of moral concerns, and she will present those moral concerns as fundamental to a liberal society, which is only morally neutral when it is morally useful to present as morally neutral. I’m firmly opposed to the Ahmari-Vermeule-Deneen thesis that liberalism should be destroyed, but you really do have to watch out for this. No liberal society is absolutely morally neutral. No society can be. There always have to be some moral ground rules, like “slavery is wrong” and “only the guilty should be punished for crimes”. And “don’t kill babies” seems like pretty low-hanging moral fruit to me.
Anyway, this was a short bit of oral argument that I’m dilating on too much.
Mostly, the left-wing justices argued that nothing significant has changed in the abortion field since Roe/Casey, therefore it would violate stare decisis to overturn it. Justice Breyer gave several speeches to this effect (not questions). He can get away with speechifying because, one, he’s very old; two, nobody wants to tick him off because everyone’s trying to get him to retire/not retire before midterms, and; three, he’s a Supreme Court justice and who’s gonna tell him he can’t give speeches? He pled with the justices and with all of America to re-read Casey’s section on stare decisis and affirm its holding: judicial supremacy is absolute, and an intense public campaign to overturn an egregiously wrong decision undermines judicial supremacy and “politicizes” the Court, so the judiciary should give such a decision extra-special super-strength stare decisis.
This is an insane interpretation of stare decisis, both as a matter of stare decisis’s actual purpose and as a matter of the judiciary’s function in our constitutional republic, and not a single one of these justices stuck by this (insane troll) logic when they were overturning Baker v. Nelson or (for Breyer) Bowers v. Hardwick. You know full well, as an informed viewer, that Justices Sotomayor, Breyer, and Kagan would not hesitate for a moment to overturn the Court’s decisions in Citizens United, Shelby County, or indeed in Planned Parenthood v. Casey itself (for not going far enough). Justice Scalia bitterly enjoyed pointing out that Supreme Court abortion precedents are protected by a super-strong version of stare decisis that appears nowhere else in American law.
(Has anyone reading this blogletter not read “Abandoning Defensive Crouch Liberal Constitutionalism”? If not, do click that link, written in 2016 by a leading light of the left-wing legal movement. That was the future the legal Left wanted for us, and everyone knew it. It was not a future where stare decisis… much less the super-powered stare decisis of Roe/Casey… was going to rule the day.)
The right-wing justices mostly argued… well, several of the things I just argued, only much more politely. Alito and Kavanaugh, in particular, kept pushing back on the idea that stare decisis can’t change without some kind of sea change. They pointed out that Plessy v. Ferguson (which created “separate but equal”) was overturned without all that much changing on the ground—because it was simply an egregiously wrong decision. And, really, (Kavanaugh pressed) what if Plessy had returned to the Court a year after it was decided, instead of 58 years after it was decided? Would the super stare decisis advocates really say that the Court should have upheld racial segregation, just because it had recently been decided and nothing had changed? (The solicitor general’s answer ran several pages, but can be translated as a mumbled “yes, the Biden Administration does believe racial segregation should have been upheld in 1897, because if we say anything else we lose this case.”)
Kavanaugh also repeatedly repeated his point that overturning Roe/Casey doesn’t outlaw abortion, but simply returns the issue to the decision of the democratic process. (This is what I meant when I said that Kavanaugh was “trying out lines” for his majority opinion overturning Roe/Casey.)
Barrett, who has thought harder and longer than any other sitting justice about stare decisis as a result of her academic work, teed up some softballs suggesting lower requirements for so-called “watershed decisions” than Casey did, which the Mississippi lawyer struggled with. (I don’t think he did a great job, although he did better than Texas’s lawyer in the original Roe v. Wade case.) Then she took a moment to expose the viability rule of Casey as arbitrary, constitutionally unprincipled, and novel (that last being bad news for stare decisis).
Justice Thomas finally spoke to try and pin the abortion clinic down on where the right to abortion supposedly comes from. As I noted this morning, the justification for the abortion right has moved around over time: there have been arguments for a constitutional right to abortion based on privacy (Roe), liberty (Casey), and on equal protection of women (who supposedly have a right to be used by the labor force machine as cogs completely interchangeable with men); this last was Ruth Bader Ginsburg’s argument. There was a good deal of talk about women’s health as well, but none of it seemed to be tied to even the shadow of a constitutional argument.
Ms. Rikelman tried to have her cake and eat it too, by arguing that all three of those justifications are grounded in the same guarantee of the 14th Amendment: no person shall be deprived of liberty without due process of law. (Of course, since my city can fine or jail me for refusing to mow my own lawn on my own property, this protected liberty is obviously not absolute freedom to do whatever you think is best, but, in Ms. Rikelman’s opinion, it certainly is freedom to kill a human child.) She advanced all three arguments under that 14th Amendment aegis, which was probably smart: she just wants to win this case, and she can let the justices bicker about which specific justification gets her the outcome she wants. Switching between justifications also gives her ways to advance an argument that abortion is necessary because of the economic impact of parenting at one moment, then (when confronted with safe-haven laws and adoption) switch back to talking about bodily autonomy. She deferred to some deeply flawed historical analyses to contend that there’s some historical reason to believe a right to abortion was part of the original public meaning of the 14th Amendment, but, since she clearly didn’t know the details of that debate beyond the citations, the justices didn’t delve into it. Solicitor General Prelogar (arguing for the Biden Administration) made almost-identical arguments when she took to the podium, in response to almost-identical questioning from Thomas.
There are a couple of off-the-wall possibilities in this case that were brought up, seemingly only to take them off the table.
Some lawyers supporting the abortion clinic argued that Mississippi violated judicial procedures here. The state argued initially that their law was compatible with Roe and Casey, then switched gears after the Supreme Court granted certiorari to arguing that Roe/Casey should be overturned. You can’t usually change arguments at that point in a Supreme Court proceeding, so these lawyers argued the case should be dismissed (“dismissed as improvidently granted” aka DIGged). Chief Justice Roberts asked Mississippi about that and received a seemingly-satisfactory answer: the state made both arguments at both phases, and only changed emphasis in response to the Court’s own decision to look specifically at the viability question. This was mete and proper, and Roberts (the most likely person to try to weasel out of this case using a DIG) pretty clearly indicated that a DIG is off the table.
Some lawyers supporting the state have argued that abortion is unconstitutional. Not only must Roe/Casey be scrapped, according to this argument, but the Supreme Court must protect the 14th Amendment rights of all unborn babies, outlawing abortion everywhere. I find this argument pretty attractive, personally. But Justice Kavanaugh raised this possibility only to swat it aside and start pushing his line about judicial neutrality. And that only affirms what the mainstream of the conservative legal movement has been saying for 50 years: abortion is a state issue, not one that the Supreme Court can decide either way. Maybe next time, after we’ve got a few state-level wins under our belt.
Okay, I’ve rambled enough, and this has gone from a daily update to a full-blown (highly opinionated) recap. Let’s sum up:
The only person who seemed remotely interested in a compromise solution that upholds both Mississippi’s law and Roe/Casey was Chief Justice John Roberts. But he was very interested in this and returned to it constantly.
The three left-wing justices were focused on protecting Casey’s faulty doctrine of super stare decisis. Justice Breyer loved that passage of Casey and quoted it repeatedly, apparently oblivious to the violence he himself did to that passage in Lawrence and Obergefell.
The three right-wing justices were joined by Barrett and Kavanaugh for a leisurely hour of firming up what looked for all the world like a majority opinion overturning Roe/Casey. They closed off escape hatches, practiced key lines, and played offense on questions of precedent and the underlying abortion right.
Based on this argument, I can’t see how Roe/Casey supporters count to five on this one. Kagan, Sotomayor, and Breyer, sure. Roberts maybe but probably not without a big compromise. And who’s the fifth? Kavanaugh, Barrett, and Gorsuch are the three go-to’s for conservative defections, and they were nowhere to be seen on this one.
Of course, I repeat, oral arguments can be very misleading, and a lot can change over the next six or seven months. You can learn stuff from them but never anything certain.
Quite a lot of post-oral argument commentary, especially on the center-left, is still swirling around the idea of a compromise solution. (See here, for example.) To my eyes, they are ignoring the plain evidence in front of them. (Note that the linked article correctly identifies Roberts as pro-compromise but fails to (EDIT: convincingly1) identify anyone who might go along with him.) It reminds me of how the center-left was acting just before Brexit, or just before Trump’s election: clear evidence showed those events to be very possible, even likely, but the center-left simply could not fit that evidence into their worldview, so they ignored it. They clung to their zombie convictions instead. The most likely outcome after today is clearly the end of Roe/Casey.
I made some very nice money on PredictIt today (almost one full dollar!) (hey, it’s more than I ever earned blogging on WordPress), because the market thought (as of last night) that there was a 64% chance that not only would Roe/Casey survive, but that the Mississippi 15-week law would actually get struck down. They do not think that anymore.
My odds, going in: 60% Roe/Casey fall, 30% of some kind of compromise, 5% Mississippi loses. My odds, now: 85% Roe/Casey fall, 10% of some kind of surprise compromise that saves both the abortion ban and Roe/Casey, 5% Mississippi loses. These odds assume no justices die or otherwise leave the Court between now and next summer — which is probably the best chance the Jackson Women’s Health Organization has.
15% is a bigger number than you think. Fasting and praying should continue periodically, and resume especially next May/June as a decision day approaches.
You may be looking at that 5% number and asking, “Huh? You have given absolutely no evidence in this whole recap that there’s even a 1% chance Mississippi loses this case.” But you can’t overinterpret oral arguments. Everyone—everyone—thought the constitutional right to a dead child was doomed after oral arguments in Planned Parenthood v. Casey 30 years ago. It was not! You’ve got to be prepared for disaster. 19 times out of 20, we win this case (in a bigger or smaller way). But I’ve played enough D&D to know that that horrible 1 out of 20 always comes up at the most dramatic moment.
I still think Texas’s SB8 law is toast. The question now is: when does that decision get handed down? The less time between SB8’s fall and Roe/Casey’s fall, the less people will die in the interim.
Ha ha ha I would promise the next Dashed Off update won’t be this long but you and I both know that’s probably not going to be true.
Whoops, that word was a significant omission. It turns out I thought the article was over before it was all the way over. Denniston does identify Kavanaugh and Barrett as potential compromise joiners… but I still can’t figure out why on Earth he thinks that of them, and he presents no evidence that they are.