Good Friday Morning, except to the newly constructed Seattle Kraken, who made off with the great Nashville Predators player Calle Jarnkrok. It’s going to be a whole new Preds team next season, and I’m not ready for it yet. Alternatively, I am ready for it because the only sports I’ve been able to watch lately are soccer and baseball. It’s just not the same without some violence on the field. Soccer players act like they’ve gotten shot in the leg every play.
This week, I’m doing a deep dive into the abortion case coming up next Supreme Court term and why I think it’s going to cause a ruckus. Links to follow.
Where you can find me this week
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Since the topic of Nathan Bedford Forrest is back in the state/national spotlight this week, I’m highlighting a column I wrote on the topic for the Tennessean in 2019: Legislature should recognize better Tennesseans than Forrest
LA County Mask Outdoor Mandate Undermines Science and Public Health Policy – The Conservative Institute.
Joe Biden’s inaction is killing people, not Facebook – The Conservative Institute.
The storm brewing from the Supreme Court
“Popular assemblies breed turbulent spirits.”
– Benjamin Disraeli
“The past reflects eternally between two mirrors—the bright mirror of words and deeds, and the dark one, full of things we didn’t do or say.”
– Gregory David Roberts
Since this is my newsletter, and I get to write about what I want. I say that because I remembered, as I sat down, how I’ve written a few pieces totally about hurricanes and meteorological theories. It’s fun stuff. I’m not doing that again today, so those of you running away can return to your seats. I promise this is a regular political column full of political thought thingies and the deep wisdom of what happened to be crossing my mind on a Thursday evening.
But I do like weather and hurricane prediction modeling. Hurricanes are one of those things we try to predict, down to the exact location it will land. It’s insane stuff when you stop and think about what we’re doing. The models consider everything from radar and satellite data to ocean temperatures and any conditions on land that could impact weather.
Think of this newsletter as an early warning that there’s a storm forming off in the political and legal oceans, and I think conditions are ripe to bring this thing ashore sometime next year. We’ll get an early taste of it in the fall. But that’ll only be a precursor.
The storm is this: I think there’s an excellent chance that Roe v. Wade and Planned Parenthood v. Casey get chucked out the door or mortally wounded by the Supreme Court, and the issue of abortion gets returned to the states. What that means is that instead of abortion being a national jurisprudential issue, it’s going to get fought at the local and state level across the country (not in every state, more on that at the end). I imagine national Democrats will push legislation, but they lack the margins to accomplish anything meaningful.
Here’s what’s coming up. The case before the Supreme Court is Dobbs v. Jackson Women’s Health Organization. It’s a case originating out of Mississippi, and the question the Court wants answered is broad, “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
The Court chose to take up the case in May, and I wrote a column at the time saying:
It’s no hyperbole to say that the opinions that come out of Dobbs v. Jackson Women’s Health could be the most important in decades.
This litigation has the potential to be a blockbuster case because the question the Supreme Court wants to be answered by the parties places everything onto the table — including whether Planned Parenthood v. Casey and Roe v. Wade continue to stand as valid legal precedents.
The issue was whether or not Mississippi would press the issue and request the Roe caselaw to get overturned. It was up to them to demand it in their brief (the Supreme Court isn’t bound by them requesting it, but it helps set the table if they do). Mississippi’s brief went up Thursday evening, and I was alerted by SCOTUSBlog about that. It’s not even something they shy away from demanding either. Mississippi leads their brief with that exact demand (I’ve cleaned it up to make it more readable):
On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws.
This case is made hard only because Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey hold that the Constitution protects a right to abortion. Under those cases, a state law restricting abortion may not pose an “undue burden” on obtaining an abortion before viability. And “[b]efore viability,” this Court has said, a State may not maintain “a prohibition of abortion,” — despite the State’s “important interests” in protecting unborn life and women’s health. Both courts below understood Roe and Casey to require them to strike down Mississippi’s Gestational Age Act because it prohibits (with exceptions for life and health) abortion after 15 weeks’ gestation and thus before viability.
Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should. The stare decisis case for overruling Roe and Casey is overwhelming.
Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.
We don’t yet know when this case will get scheduled for oral arguments, but all expectations say in the fall (Oct/Nov). And then the wait will start for the opinion, which I wouldn’t expect until May or June of 2022. The last major religious freedom case, Fulton, was argued in November and then didn’t come out until June. Dobbs is a contentious case and, barring some bizarre deal cut by Breyer or Kagen, is destined for a 6-3 decision.
That’s why I led with the quote from Disraeli, “Popular assemblies breed turbulent spirits.” The popularly elected assemblies are going to be full of some turbulent spirits, if I’m right. Suppose abortion is an issue that goes back to the states. In that case, you’re going to see a massive shift in legislation on the local, state, and federal levels — especially heading into the 2022 midterms. This decision will hit in the summer, spawning a prolific debate heading into the fall.
What the decision-making process will likely be.
In my mind, if it’s a 6-3 decision, there are only two people who will write it: John Roberts or Amy Coney Barrett. I doubt Roberts writes this decision, but he and Kavanaugh will be significant players on how far to take this case. All of this means that this is the first blockbuster decision authored by Barrett in what will be her second year on the court. I say this because I know where Alito, Thomas, and Gorsuch will vote on this issue. It’s not because they’re partisans, but because their jurisprudence takes them to overturn Roe/Casey (as it does me). They’ve already said as much.
The last abortion case we had was 2020’s June Medical Services v. Russo, with Gorsuch and Kavanaugh on it. The case surprised everyone on the right because Roberts cast a vote concurring in the judgment, but not on anything else. It was a bizarre plurality opinion on abortion regulation that was 5-4 in judgment but 4-1-4 in reasoning.
Alito was the principal dissent in that case. Gorsuch agreed with Alito outright. Thomas and Kavanaugh did as well, to differing degrees (they joined all but specific paragraphs). Gorsuch, however, devoted a portion of his dissent to blasting Roberts concurrence in the case, ending with this paragraph:
To arrive at today’s result, rules must be brushed aside and shortcuts taken. While the concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.
And I suspect Gorsuch was voicing the frustrations of Thomas and Alito. Thomas took issue with Roberts too, wrily noting, “the fact that no five Justices can agree on the proper interpretation of our precedents today evinces that our abortion jurisprudence remains in a state of utter entropy.” This is why I included the second quote, this case is another situation where the Court faces a decision it hasn’t taken so far, despite the opportunities it has had.
The three liberals are likely already writing their dissents; Breyer and Kagen will try to cut deals. It’s unclear what Breyer/Kagen are willing to give up to protect the abortion right. The three justices who will decide this case will be Roberts, Kavanaugh, and Barrett. If Barrett chooses to strike everything down, I believe Kavanaugh will work with her to move Roberts over. Roberts is very much the mold of a judicial minimalist; he wants the Court out of national politics as much as possible. But he also knows Scalia’s warning that the Court remaining in abortion cases made it political.
Barrett was a Scalia clerk, and I know she knows Scalia’s dissents on that front. The most notable thing in Barrett’s scholarship is a law review article she wrote on the importance of stare decisis for the Supreme Court, “Precedence and Jurisprudential Disagreement.” If you’ve ever wondered the broad contours of the around stare decisis, it’s worth a read. She’s big on footnotes.
Before I go on, stare decisis is a Latin phrase meaning “to stand by things decided.” It’s where the law builds upon precedents and gives case law its meaning and purpose. The trend is to stand by previous decisions unless there is good reason to depart from them. Doing this allows us to build upon the wisdom of the past and not have to reexamine first principles in every single court case.
The open question is how much deference and precedential value should Roe and Casey receive? The Court’s liberals want to make the abortion right a “super precedent,” making it untouchable. Everyone else on the right disagrees. I know, whatever the outcome, abortion won’t be a super precedent because that’s a patently ludicrous position unsupportable by law or politics.
Barrett has two things on stare decisis from that law review article worth noting. The first is about the impact of overruling precedent and the impact that has on a court’s legitimacy in the public’s eyes (bolded emphasis mine):
The question remains whether overruling precedent affects the Court’s actual legitimacy. Does the Court act lawlessly-or at least questionably-when it overrules precedent? I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it. That itself serves an important rule-of-law value. Of course, constant upheaval in the law would disserve rule-of-law values insofar as it would undermine the consistency and therefore the predictability of the law. But constant upheaval is not what a weak presumption of stare decisis has either promised or delivered. The Court follows precedent far more often than it reverses precedent. And even though overruling is exceptional, it is worth observing that the Court’s longstanding acceptance of it lends legitimacy to the practice.
That line came up during her confirmation process, and the left painted it as a bad thing. The same article revealed something else on her views regarding Casey:
In my view, however, “superprecedents” do not illustrate a “super strong” effect of stare decisis at all. Stare decisis is a self-imposed constraint upon the Court’s ability to overrule precedent. The force of so-called superprecedents, however, does not derive from any decision by the Court about the degree of deference they warrant. Indeed, Planned Parenthood of Southeastern Pennsylvania v. Casey shows that the Court is quite incapable of transforming precedent into superprecedent by ipse dixit. The force of these cases derives from the people, who have taken their validity off the Court’s agenda. Litigants do not challenge them. If they did, no inferior federal court or state court would take them seriously, at least in the absence of any indicia that the broad consensus supporting a precedent was crumbling. When the status of a superprecedent is secure-e.g., the constitutionality of paper money-a lawsuit implicating its validity is unlikely to survive a motion to dismiss. And without disagreement below about the precedent, the issue is unlikely to make it onto the Court’s agenda.
That tells us, 1) she doesn’t think Casey is a super precedent (and by extension, that means Roe). And 2), it is possible to keep the Court’s legitimacy while overruling precedence. All that said, I do think Barrett is a vote to knock out Roe and Casey. And I believe her argument to Roberts, which Kavanaugh will join, is that getting abortion out of the Court will restore legitimacy.
What happens after that?
The remaining question is: “how?” and “to what extent?” Do they rip off the bandaid and throw abortion back to the states, making this a live issue at once? Or do they mortally wound Roe/Casey somehow and return at a later time?
The way to mortally wound Roe/Casey would be to say that they aren’t overruling those cases, but they are giving states much broader powers and ruling on those powers under a rational-basis test. It’s a favorite trick of Roberts to undermine a case without ever overruling it.
In general, there are three levels of scrutiny that a court can apply in a given case: Strict, Intermediate, and Rational-Basis. If a law is getting strict scrutiny, it’s probably going to get struck down. Liberals have tried to give abortion this level of a review for decades, without much success. Casey invented its own unique review standard for abortion, which isn’t used in any other area of law. Rational-basis means that as long as a state can connect a piece of legislation to some rationally based goal, it’s acceptable under the Constitution.
Making abortion restrictions a rational-basis test would effectively kill every kind of abortion except an outright ban. The question presented is “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” And the Court could say that they wouldn’t rule on all restrictions since that’s impossible, but they would allow the limits Mississippi wanted under a rationally based test.
If that occurred, all restrictions would be open game for the states. It’d just be a matter of figuring out whether or not an outright ban would be legal. I believe some form of the mortal wound path will be the chosen path, and it’s hard to imagine a minimalist Court moving quickly on this topic. So that’s my prediction. The Court wounds the Roe/Casey cases and sends states scrambling to enact their laws*.
I have an asterisk there because some states have trigger laws in place (like Tennessee) that say, “if the Supreme Court strikes down Roe/Casey, abortion is automatically banned statewide.” If the Court only wounds Roe/Casey, it’ll be interesting to see whether the trigger laws can go into place (the last count I found says that ten states have trigger laws in place).
In any event, if this happens, the political turmoil it kicks up will be enormous. That’s the storm I think that could hit sometime next year. Watch for things to ratchet up around oral arguments in the fall. And then the media will begin a drumbeat aimed right at Roberts, Kavanaugh, and Barrett, saying, “stare decisis is good, and you can’t overrule it ever.” Joan Bispusik will be all over CNN saying the legitimacy of the Court is at stake if they overrule Roe/Casey.
Democracy will, yet again, be at stake yada yada yada. You know the drill. It’s all hogwash. But the press must say something. It’ll be a media firestorm. The media believes it has backed John Roberts down before, and it can do so again. They’ll be even louder about it this time.
Links of the week
Myths of the Over-Managed – Tanner Greer
The pandemic killed the common good – Samuel Goldman
The Panic Pandemic: Fearmongering from journalists, scientists, and politicians did more harm than the virus. – John Tierney, City-Journal
Twitter Thread(s) of the week
Satire of the week
Thanks for reading!