NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
Dashed-Off Daily Dobbs upDate #2 of 2 for today but man I got more to say
I dash these updates off after developments in Dobbs v. Jackson and/or Whole Woman’s Health v. Jackson. They are lightly edited, stream-of-consciousness impressions of the day’s action. They’re good but don’t set too much store by them. I couldn’t make time for a picture on this one.
Earlier, I posted the new sections of Alito’s 5-justice majority opinion in Dobbs. It took me until quite late at night to finish reading the rest. During the day, I have an actual day job, and hoo boy it was hard to think about Dobbs when Amazon Web Services was melting down on me for six hours straight.
Then, during the evening, I had to attend a celebration with a few women (and a few men) who have worked their whole lives to protect the unborn. There was pizza and ice cream and some water balloons. I hope that you, too, took some time to celebrate. (Or will take some time in the next few days.) Today is only the beginning of the fight for unborn rights, not the end… but there are children alive right now at this minute who would have died today if this decision were not handed down. And it’s thanks to the hard work, advocacy, and, yes, prayers of millions of people like you. Celebrate.
If you want an example, here’s one. Robin Marty is a dedicated, devoted woman who believes so strongly in the right to abortion that she runs an abortion clinic. I respect her enormously. She tweeted this morning:
That’s a child Ms. Marty was not able to kill, despite her best efforts. The democratically-passed laws of her state protected that child’s life. Although statistics are harder to come by than some wish to admit, it appears that the overwhelming majority of mothers who are denied the opportunity to abort their children are happy about that five years later.1
We might also look to Texas, where some of these children who were improbably saved by SB8 are now being born. The particular teen mom in that story, who loves her babies more than anything, but who but clearly is not getting all the support she needed from her family, is now the subject of a successful pro-life GoFundMe. She will certainly not be the last mom who needs our support.
Not all the moms (and dads) we need to help will have their stories amplified by the Washington Post. Not all of them will be successfully crowdfunded. We must look to our own communities, keep our eyes open for mothers who are falling through the cracks, and do all in our power to support them. Sometimes this will mean $10 in a pass-the-hat. Sometimes it will mean much more. I know pro-lifers who have become deeply involved in the lives of women who had nowhere else to turn; who have spent thousands supporting one mom and one child; who have driven moms in crisis pregnancies to the hospital to give birth because there was no one else; who have adopted children as their own because the mother would otherwise have aborted. The press doesn’t want these pro-life women and men to exist (it ruins the “Handmaid’s Tale” narrative), and many of the people they help don’t want to be advertised to the world as charity cases—who would? wouldn’t it be ghoulish of us?—so nobody knows these stories. But you can’t throw a stone in a pro-life gathering without hearing one or ten.
We have done so much. There is still so much more to do. But, today: celebrate.
Anyway, that wasn’t supposed to be the topic of this post. I actually wanted to talk about the rest of the Dobbs decision, because gosh darn it I spent hours reading it. I try not to write what has already been written elsewhere by others smarter than me, but I think I have a few things to say that are still worth saying.
The Dogs That Did Not Bark: Gorsuch and Barrett
Gorsuch and Barrett helped overturn Roe today. They said nothing at all. This was a surprise. I have thought for many years that Barrett would naturally be assigned to write the decision (if Thomas didn’t assign it to himself). This is, firstly, because Barrett is very smart and a solid writer, secondly because Barrett’s scholarship on the key issue of stare decisis is exceptional—she knows more about stare decisis than anyone else on the Court, because her academic career focused on it so much—and thirdly because she is a woman and a mother, and the symbolism of a woman and mother standing up for all this country’s children (not just her own) and rejecting the equality lie of Roe/Casey is important, even if legally irrelevant.
Or so I thought, anyway. Nobody else did, apparently. Thomas assigned the decision to Alito. Barrett didn’t write a concurrence of her own. Nor did she join either of the other concurrences. She cast her vote for Alito’s decision and that was it. I do suspect that Barrett helped Alito refine his stare decisis arguments. Reading Justice Kagan’s dissent, her side of the Court could really have benefitted from having someone with ACB’s expertise on the subject.
Gorsuch also wrote nothing. I assumed he was writing a concurrence, because Alito had the majority opinion, and I would have guessed Gorsuch would be ahead of Alito in line to write the majority, unless he were diverted for a concurrence. When we learned that Roberts was doing a Stupid Roberts Thing, I thought Gorsuch even more likely to write something, because he and Roberts are constantly at each other’s throats. (I wonder whether Roberts drifted left faster recently because he hates Gorsuch.)
Nope, turns out Gorsuch was content to let the majority speak for him. (To be fair, it’s a very good majority, better than I expected from Alito, so Thomas was right to assign to him.)
The Kavanaugh Concurrence
Justice Kavanaugh wrote what I have come to call The Kavanaugh Concurrence™. In any sufficiently controversial case, when Kavanaugh sides with the conservatives, he writes separately to explain that he loves, honors, and respects all sides of the case, greatly regrets all the discord that may follow from his decision, and explains why he doesn’t think the losing side needs to be scared.
To my memory, Kavanaugh never writes The Kavanaugh Concurrence™ when he sides with the progressives.
Honestly, fine, whatever. It’s probably actually a good idea to take some time to say nice things about your vanquished opponents, even if it’s a futile gesture doomed to be ignored in today’s environment. The problem I have with The Kavanaugh Concurrence™ is that it’s always so darned obsequious, like he isn’t so much trying to recognize the losing side as an honorable opponent as he is trying to get them not to hate him, disinvite him from all the social functions, and burn down his house.
Here, his strategy is to repeat the line he tested out at oral arguments: he insists that the Court isn’t siding with anyone, but adopting the neutrality that the Constitution prescribes. Abortion is left to the state legislatures, where it belongs, and people can agree or disagree about it in good conscience, with democracy deciding.
This particular Kavanaugh Concurrence™ is particularly vexing, though. In trying to insist that the losing side in Dobbs really has nothing to worry about, he makes two fairly major concessions to the other side that I really wish he hadn’t made.
First, Kavanaugh insists that the Constitution is silent on abortion… in both directions. Kavanaugh expressly rejects the claim advanced by Robert George, John Finnis, and others that unborn people are people and that abortion itself therefore violates the 14th Amendment. The Alito majority carefully avoided making any judgment about that question. Kavanaugh stomps on it, saying that no justice has ever held this position and that he doesn’t, either. (He makes literally no argument against anything George & Finnis and the others have said. He just dismisses it outright, seemingly out of a desire to smooth the dissent’s feathers.)
Second, Kavanaugh makes a very significant concession to future case law, again on the basis of no discussion whatsoever:
May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel.
Not even a footnote to explain the right to interstate travel! This is a problematic concession, because one of the next frontiers in the abortion wars is indeed going to be interstate drama. For example: suppose Pennsylvania passes a law allowing abortion, but requires mothers to secure the consent of the father first. If the father does not consent to the abortion, then the abortion is forbidden, and he assumes full responsibility (and sole custody) for the child until the child turns 18. (I’m not saying it’s a good law, just saying it’s a law that could exist.) Violation of this law is both a crime (a doctor performing the abortion can go to jail) and a tort (the mother can be sued for damages for depriving the father of his paternal rights). Now suppose an expectant mother wants to abort her child, but dad says no. Contravening the law, she crosses the border into New Jersey, which has abortion on demand, and aborts the child.
Justice Kavanaugh apparently believes the father has absolutely no legal remedy here. His partner has just killed his only child, but, because she crossed state lines, there’s nothing anyone can do to redress the harm done to him. That… doesn’t seem correct. Or, at least, it’s not half as simple as he wants to make it to allay the dissent’s concerns.
Oh, well. Kavanaugh may reconsider in the right case, and I really can’t be too mad at him, because the pressure Roberts put on him to defect from the majority must have been very intense. And Kavanaugh loves Roberts. And Kavanaugh craves acceptance. He overcame these obstacles to do the right thing today, both legally and morally. I’m gonna cut him some slack if he feels the need to soft-pedal it, especially since I agree with his core notion of being nice to your opponents.
John Roberts, Fartface
I am not going to cut Chief Justice Roberts a modicum of slack. He doesn’t deserve it. He deserves less. He is the least respectable person on the Court today, including all three of the dissenters (with whom I passionately disagree).
I used to try so hard to defend this guy. I still think he had a point about saving the Affordable Care Act through judicial minimalism!2 But this concurrence-in-the-judgment today is next-level nonsense. My reaction on Facebook today was, “Roberts really is a little crapburger.” My sister reminded me that, two years ago, when Roberts handed down June Medical, my Facebook reaction to that was “Roberts you dumb fart.” So, yeah, I’m done with this dope. He is not doing law and has not been trying to do law for a long time. He is playing politics, trying to forge compromises like a gorram Congressman instead of an Article III judge—the chief Article III judge, as a matter of fact!
Roberts says that the Question Presented to the Court was a narrow one: “are all previability abortion bans unconstitutional?” This is correct. Although the very practice of selecting only isolated questions from appeals is legally questionable, it’s a common practice, and that was the only question the Court took in Dobbs.
Roberts then insists that you don’t have to overturn Roe or Casey in order to answer that question (correctly) with “no.”3 Literally everyone involved in this case disagrees. Both sides think this case hinges on Roe or Casey falling or not. But Roberts alone among all human beings thinks otherwise. He must either be America’s biggest brain-genius or its biggest idiot.
How can he allow previability abortion bans without overturning Roe/Casey? The central holding of Roe preserved by Casey was that a woman has a right to abortion until viability, at which point the interest in fetal life becomes stronger. Roberts proposes to abolish this line, because the legal basis for the line is nonsense (true), but he insists that this is all the Court should do. It should otherwise keep Roe and Casey on the books.
What Roe and Casey would even mean with their central holding vitiated is unclear. Obviously, the viability line would have to be replaced with something. (If abortion bans are allowed, and there’s no replacement line, Roe/Casey are overturned anyway!) So Roberts suggests that the true holding of Roe/Casey was that mothers needed “sufficient time” to decide whether to abort or not. He proposes the “sufficient time” standard as the new rule, rooted in Roe/Casey. This is nonsense on stilts, and Roberts surely knows it. He is not clarifying those decisions or partially overturning them. He is rewriting them.
A judge who knew something about the law once explained how to apply stare decisis and how to know when to set it aside. That judge was clear that, once you have to rewrite a precedent to keep it on its legs, it’s time to let it go:
To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.
Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.
That judge’s name was John Roberts, writing in Citizens United. The shell who sits on the Court today is not recognizable as the same man.
Roberts presents his transformative “sufficient time” rule, but he fails to acknowledge that he is thereby rebuilding the foundations of Roe and Casey on new constitutional ground. He fails to inquire whether that ground is sound, or has any basis in the Constitution or any other precedents outside this line of cases. He fails to elaborate on what it might mean, leaving that question for future courts.
But he does stop long enough to explain that his proposed rule would smash the hard, pro-unborn, democratic legislation of a dozen states to ickle tiny bits:
…But under the narrower approach proposed here, state laws outlawing abortion altogether would still violate binding precedent. And to the extent States have laws that set the cutoff date earlier than fifteen weeks, any litigation over that timeframe would proceed free of the distorting effect that the viability rule has had on our constitutional debate. The same could be true, for that matter, with respect to legislative consideration in the States. We would then be free to exercise our discretion in deciding whether and when to take up the issue, from a more informed perspective.
We know full well from John Roberts’ past work that “exercising our discretion in deciding whether and when to take up the issue” means “we will never touch this issue again as long as I can prevent it.” This constitutional decree, issued by King John, would have lived as long as he did, rooted not in the Constitution, not in the rule of law, but in John Roberts’ own will—and his decree would have prevented the People from exercising their right to legislate democratically for yet another generation.
Roberts has the insane audacity to call this position judicial modesty.
A cynic would notice that Roberts proposed line, while it has absolutely no visible basis in law recognized by either side of this debate, does happen to fit very nicely with what national polls say would be the most broadly popular settlement of the abortion debate. Allowing abortions in the first trimester and banning them beyond that is broadly popular with the public.
Like a gorram Congressman.
Will Roberts Resign?
This is a question worth asking. Roberts’ rulings are so far up his own buttocks at this point that it is no longer clear what he is actually doing it all for. Turning Dobbs from a 6-3 into a 5-1-3 certainly didn’t help with that judicial integrity and legitimacy he’s always talking about. The fact of the matter is, Roberts’ days as the swing justice in control of the Court are probably behind him. He surely knows this. Even if the pendulum swings back thanks to future nominations, it’s unlikely to make him the swing again, at least not for long; it’s more likely to put Kagan in control of the Court. Roberts is now an unhappy mediator of two increasingly warring sides. He is impotent to affect many landmark decisions and equally impotent to suppress the growing culture of leaks, to discourage illegal picketing at his justices’ homes, or to catch the leaker. And I think he’s probably very annoyed at the conservative majority that is rapidly leaving him—him, King John Roberts—behind!
So maybe there’s a part of Roberts that’s saying to himself, “I could get out of this job right now, and I would Save The Court’s Legitimacy (in the minds of Georgetown progressives, anyway, and all I have to do is resign my conservative seat and let Joe Biden replace me.”
I don’t think that’s a good plan, but Roberts has a lot of plans I don’t think are good, so who knows?
I don’t think this is very likely. Maybe 10% likely. There’s a large chance he still wants to try to do some good (as he sees it) at the Court, and an even larger chance that these few paragraphs completely misread his personality. But still it’s a question worth asking, at least in a Dashed Off Daily Dobbs Update where my editorial standards are more or less stream-of-consciousness. Next week is the traditional week to announce retirements! Stay tuned.
Abrupt Conclusion
Just like when the Dobbs draft leaked, I intended to get everything about the opinion written in one go. I failed. It’s late and I have a big day tomorrow (not abortion-related). I have to go to bed.
I will try very hard to write more tomorrow about Thomas’s surprisingly unsurprising concurrence, and then, of course, about the joint dissent (which is by far the longest part of the decision I haven’t touched yet). Good night!
(And don’t forget to celebrate!)
This factoid comes from a New York Times article, but the NYT is paywalled, so here’s a link to the generally not-too-reliable LifeSiteNews that reports on the NYT article. You can click through to the NYT or just take LSN’s summary’s word for it: the Turnaway Study found that only 5% of mothers turned away from abortion still wish they didn’t have the baby five years later.
Of course, it is worth mentioning that the study found an equally small percentage of women who got abortions ended up regretting it.
I now think the tell that Roberts was not doing law in the ACA case was his treatment of the Anti-Injunction Act, which I didn’t care about at the time, but it made no sense and was not consistent with Roberts’ later reasoning.
In the originally posted version of this post, this said “yes” instead of “no.” I don’t usually correct DODDU posts, but this was pretty confusing! Updated 27 June 2022.