Good Friday Morning, I hope you and your family had a happy and blessed Thanksgiving! I enjoyed the week off from writing and spent it stuffing my face with every conceivable food item within reach (or within reach of my DoorDash app). Back to writing this week, and it’s good timing, too, since the Supreme Court kicked off December with the Dobbs abortion case.
This case and those oral arguments will help shape how everyone views the Supreme Court for the next several years, for better or worse. It’s the first time since 1992 that abortion is genuinely at the forefront of the Supreme Court. Whatever the result of this case, it will be on par with Roe and Casey because the Court has to reconsider those cases. I’ll dig into the oral arguments and take you on the tour of some of the things happening–links to follow.
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Abortion goes to SCOTUS and we get oral arguments.
In all philosophy 101 courses in college, freshmen go through the “allegory of the cave” when studying Plato and Socrates in The Republic. It’s a week one, the first thing you hit out of the gates. In brief, “Socrates describes a group of people who have lived chained to the wall of a cave all their lives, facing a blank wall. The people watch shadows projected on the wall from objects passing in front of a fire behind them and give names to these shadows. The shadows are the prisoners’ reality, but are not accurate representations of the real world.”
In the allegory, one person frees himself, walks outside the cave, gets blinded by the sunlight, and then sees everything for what it is. For Plato and Socrates, the philosopher is the person who gets outside the cave and finds the truth. For our purposes, the people in the cave reading the shadows on the wall and declaring what that shadows are, those people are everyone trying to figure out what’s happening in the Dobbs abortion case before the Supreme Court.
The Justices spent close to two hours asking questions and interacting with the case, in our only picture of the mindset of the Court. Everyone is grasping at shadows and trying to predict what will happen in this case. We’re not going to find out for several months. It wouldn’t shock me if this case didn’t get released until the very end of this term, at the end of June 2022.
Dobbs is a big case, and it’s the first shot the Supreme Court has had at re-examining the abortion right since 1992. Next year, nearly 30 years to the day, we could be getting the most critical abortion case in a generation. That’s not hyperbole. That’s just a fact. The only person on the Supreme Court for the 1992 Casey decision that is still on the Court now is Clarence Thomas. He dissented in Casey, and I know he’d like to reverse these decisions.
Is that going to happen? You can read the shadows, read the tea leaves, or apply another metaphor. The answer is: I don’t know, and neither does anyone else. There are no insiders, no reliable leaks, and nothing else to rely on except hints gleaned from guessing what the Justices are thinking at this stage when it comes to the Supreme Court.
Besides the law itself, some broad concepts are going around regarding this case. I’m not shy in saying that I hope the Supreme Court strikes down Roe/Casey and sends the issue back to the states. In deciding Roe/Casey, the Court took a political issue and eliminated any political development on it. You don’t find the same debates in Europe, even though the American left would likely call European abortion laws draconian (most of Europe has abortion legalized, but it’s limited or non-existent after 15 weeks).
Stare decisis for conservatives and liberals.
The primary objection from the liberals on the Supreme Court is that the doctrine of stare decisis, which is where the Court leaves decided cases alone, should force the Supreme Court not to touch Roe, Casey, or the abortion right. The conservatives on the Court directly pushed against the stare decisis point. From SCOTUSBlog:
At least three justices – Thomas and Justices Samuel Alito and Brett Kavanaugh – appeared inclined to agree with Stewart and overrule Roe and Casey outright. Kavanaugh said that the Constitution does not directly address abortion and that the issue should instead be left to the democratic process. The court, he suggested, should remain “scrupulously neutral on the question of abortion — neither pro-choice nor pro-life.”
Kavanaugh later set forth a list of celebrated cases in which the court overruled prior decisions or announced new constitutional law. The cases he cited included Brown v. Board of Education, which outlawed racial segregation in public schools, Baker v. Carr, which helped enshrine the principle of “one person, one vote,” and Obergefell v. Hodges, which recognized the right to same-sex marriage. Describing those and other rulings as some of the “most consequential and important in the court’s history,” Kavanaugh said that if the court had simply adhered to its precedent, the United States “would be a much different place.” If we think that Roe and Casey are seriously wrong, he asked, why isn’t the correct answer to overturn them and “return to a position of neutrality?”
Alito pressed a similar point with U.S. Solicitor General Elizabeth Prelogar, who argued on behalf of the United States as a “friend of the court” supporting Jackson Women’s Health Organization, the only abortion clinic in Mississippi. Alito asked Prelogar whether the court’s infamous 1896 decision in Plessy v. Ferguson, holding that racial segregation laws did not violate the Constitution as long as “separate but equal” facilities were available, could have been overruled one year after it was handed down. When Prelogar agreed that it should have been, Alito seized on the concession. That means, he stressed, there are circumstances in which an “egregiously wrong” decision can be overruled even if the facts on the ground have not changed.
Alito’s point was, in particular, a hard one for the stare decisis crows because it was egregiously wrong. No lawyer in their right mind can assert otherwise. And yet, Prelogar and the left didn’t want to give up that ground (or any of the points raised by Kavanaugh) because to do so destroys the raw power of stare decisis. You can’t just say stare decisis; you have to defend Roe and Casey — a tricky proposition.
The liberals, as mentioned, leaned heavily into stare decisis. For them, it’s their strongest argument. Again, from SCOTUSBlog:
The court’s three liberal justices – Stephen Breyer, Sonia Sotomayor, and Elena Kagan – emphasized the importance of stare decisis, the principle that courts should adhere to prior precedent except under limited and extraordinary conditions. In particular, they stressed that overruling Roe and Casey would undermine the court’s legitimacy by creating the sense that the meaning of the Constitution hinges on the court’s membership at any particular moment in time. Sotomayor made the point most explicitly, noting that sponsors of the Mississippi ban had drafted the bill in response to changes in the Supreme Court’s membership.
“Will this institution survive the stench that this creates in the public perception – that the Constitution and its reading are just political acts?” Sotomayor asked. “I don’t see how it is possible.”
Breyer and Kagan echoed Sotomayor’s sentiments, although in slightly less stark terms. Breyer cited Casey itself, which said that overruling prior precedent in response to social or political pressure would “subvert” the court’s legitimacy. And Kagan emphasized the importance of stare decisis to prevent people from thinking that the Supreme Court is a political institution.
Sotomayor was extreme in all her statements. You can ignore her in any of the cases. She’s taking positions so extreme that it paints her cohorts in a bad light. But when you compare the points raised by the liberals to the conservatives, it’s not a fair fight. Did overruling the cases listed by Kavanaugh create a stench that Sotomayor describes? No. The stench came from opinions like Plessy, where the Court ruled wrongly.
But the liberal’s lines on stare decisis will get all the play in the media. On this topic, there is an extreme bias towards the abortion cause, and they will amplify the idea that the Supreme Court will lose legitimacy if they overrule Roe/Casey. The irony of this, as Josh Blackman notes, these same liberals had no qualms glibly overruling precedent on “Obergefell v. Hodges. That decision overruled Baker v. Nelson, to say nothing about millennia of deeply-rooted traditions. Justice Kennedy overruled Baker without any discussion, whatsoever, of stare decisis.”
There’s a lot of noise about tradition and the need to uphold case law, except when it’s something they want.
Barrett vs Kagen on whether the fundamentals of abortion have changed.
While Barrett and Kagen played their cards close to the chest, there was a specific line of questioning where they showed opposite conclusions. First, Kagen suggested that nothing has changed since Roe was decided, which indicates that the Court should respect the case:
Kagan also addressed Roe and Casey head-on. Overturning those rulings, she said, would require a “strong justification” that, in her view, simply doesn’t exist. “Not much has changed” in the nearly 50 years since Roe and the 30 years since Casey, except that there have been numerous decisions reaffirming Roe and Casey, along with decades of reliance by women in the United States on those decisions, Kagan said.
Barrett alluded to an opposite conclusion:
Barrett posited that “safe haven” laws, which allow parents to give up their newborns at designated safe places, might help to ease the burdens of parenting, which both Roe and Casey emphasized – a comment that might signal that she regards the premise of Roe and Casey as having changed.
On this point, I think Barrett is unquestionably correct. There’s simply no comparison to the state laws and organizations set up now on the pro-life side compared to when Roe was initially handed down. And none of this includes the advancements of medical science, which nullified Roe’s discussion of science and viability.
What does all this tell us? Not much.
Roberts vs all…?
Chief Justice Roberts was also being closely watched. The big takeaway was his suggestive questions that the Mississippi ban on abortions after 15 weeks could be upheld — without touching Roe or Casey.
Chief Justice John Roberts appeared ready to uphold the Mississippi law, but he focused primarily on the 15-week ban, rather than on the bigger question of whether to overrule Roe and Casey entirely. Roberts, who in 2020 voted to strike down a restrictive Louisiana abortion law on the ground that it was virtually identical to a Texas law that the court had invalidated four years earlier, observed that the viability line was not directly at issue in Roe. Indeed, he noted, the papers of Justice Harry Blackmun, the author of Roe, indicated that Roe’s reference to viability was “dicta” – that is, only an incidental remark and not precedent.
Roberts also suggested that 15 weeks would be enough time for women to decide whether to obtain an abortion. If the case boils down to having a meaningful choice to terminate a pregnancy, then “why would 15 weeks be an inappropriate line?” he asked Julie Rikelman, who argued on behalf of the clinic. “Viability, it seems to me, doesn’t have anything to do with choice,” Roberts continued. “If it really is an issue about choice, why is 15 weeks not enough time?” His comments suggest that Roberts, at least, may be considering a ruling that nominally keeps Roe and Casey in place but scraps the viability line and allows states to prohibit abortions earlier in pregnancy than is currently permitted.
The only way a deal like this comes into play is if the Chief can convince the liberals to go along with this plan AND get someone like Kavanaugh, Gorsuch, or Barrett to go with him. The Chief was the only one presenting this kind of idea. So it’s unclear if he has the votes. That could change over the next few months, so we’ll see.
Where do things go from here? It’s all conjecture. My biases are towards overruling Roe/Casey and sending this issue back to the states. Between the makeup of the Supreme Court and some of the questions presented, I can see some light and possibilities here. The logic and questions are there, but I also won’t believe it until I see it. Stay tuned. We’ll be revisiting this topic late next spring/early summer.
Links of the week
Did the conservative legal movement succeed? That all depends on whether the Supreme Court overrules Roe v. Wade. – Edwin Meese III, Washington Post
Powell’s ‘Transitory’ Retreat Is Just the Beginning – Mohamed A. El-Erian, Bloomberg
Biden Hasn’t Fixed The Port Crisis — Ships Are Just Being Counted Differently – Dominic Pino, National Review
Analysis: Alec Baldwin’s Gun Could Have Fired Without Him Pulling the Trigger, But Did It? – Stephen Gutowski, The Reload
A shadow war in space is heating up fast – Josh Rogin, Washington Post
We Opened the Schools and … It Was Fine – Aaron E. Carroll, The Atlantic
Twitter Thread(s) of the week
Satire of the week
Thanks for reading!