Today, the United States Supreme Court hears Dobbs v. Jackson Women’s Health Organization, among the most significant cases of a generation. The court will consider whether states can ban pre-viability abortions. Decide they could get the court to overturn Roe vs. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, which would cause waves in American law, culture and politics.
Roe deer and Casey, the 1992 decision which reaffirmed Roe deer and the banned pre-viability abortion regulations, which constitute an “undue burden”, place the court at the center of arguably the most heated debate in social policy and, in so doing, touch upon the most fundamental and contested principles. of American governance: autonomy, pluralism, federalism, equal protection, substantial fair procedure, natural law, stare decisis, and more. As such, Dobbs invites radical and passionate arguments on the most interesting abstract concepts. This is especially true across much of the political right, where it is widely believed that Roe deer and Casey have been badly decided and have distorted law and politics ever since.
While such arguments are undoubtedly important, they are unlikely to win. Dobbs. It’s not about questioning Roe deer and Casey. In fact, the six current Republican-appointed judges would likely have voted against Roe deer if they had been in the field in 1973. The question in court today is what to do, given that Roe deer and Casey have been on the books for decades.
This implies more than the force of precedent – the extent to which the Supreme Court should preserve these decisions for the sake of continuity and predictability. The six most conservative judges today – using various rules of thumb to assess when precedents should be overturned – likely see the legal merits of ending the Roe deer / Breakage time.
Instead, the key question is whether five judges can be convinced that there is something stronger – more constitutionally defensible, more achievable, and not too politically radioactive – that can replace Deer / Breakage. The most important scenario in today’s argument will be whether Mississippi, by defending its 15-week abortion ban, can claim it exists.
Many opponents of abortion will be frustrated that it is not enough to show that Roe deer and Casey were badly decided and meet the cancellation criteria. In fact, this will will likely suffice for Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. But Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh – call them the “three keys” – will need more persuasion. They are not like “Justice be done even though the heavens fall.”
Like I have argued before (and has tried To to prove graphically) the three keys are conservative in judicial philosophy but also conservative in their temperament. Their restraint is revealed in several ways, for example, by writing narrow decisions, avoiding dramatic positions and hoping to maintain the public reputation of the court. They prefer to move wisely (if not cautiously); they give the impression of remaining aware of the dangers of going too far too quickly. The Dispatch own Sarah Isgur, in an excellent essay in Politics, have rightly called their approach “institutionalist,” which includes upholding precedents, producing practical results that support effective government functioning, and a preference for gradual and narrow change. Isgur identifies Roberts, Kavanaugh and Barrett as “conservative institutionalists”.
In order to influence these three, the Mississippi lawyer must understand that they will think less about “Should we ignore this?” Roe deer and Casey? “and more along the lines of” What will happen to law, politics and the court if we were to override Roe deer and Casey? ”But the Mississippi brief – and most of the briefs filed by those supporting the Mississippi side – focus on the first question.
It should be noted that Mississippi provides a strong argument on this point. From its clear introduction – “On a good understanding of the Constitution, the answer to the question presented in this case is clear and the path to this answer is right” – the brief argues Roe deer and Casey were “grossly flawed”, that they are “hopelessly impractical” and that the arguments for canceling them are “overwhelming”. His most impactful sentence reads: “Roe deer and Casey are unprincipled decisions that have undermined the democratic process, poisoned our national discourse, obstructed the law and, in so doing, harmed this Court. In a follow-up brief, Mississippi calls Deer / Breakage “indefensible.”
A number of other briefs offer strong arguments against Roe deer / Breakage. Many note the life protection of the 14th Amendment, the negative influence of Roe deer / Breakage on the judicial confirmation process, and the shortcomings of Caseythe line of “viability”. The ethics and public policy brief argues that the historical record does not demonstrate that neither the Ninth nor the 14th Amendment contemplated a right to abortion and argues that “the greatest enduring threat to the legitimacy of this Court is Roe deer himself. The Alabama Center for Law and Liberty cites the many state laws unrelated to abortion that aim to protect fetuses from pre-viability. The memory of the Senses. Josh Hawley, Mike Lee and Ted Cruz — all former Supreme Court clerks — claim that Casey’s “new and amorphous” overload standard produces unpredictable, shifting and “utterly impractical” results. A brief from nearly 400 state lawmakers argues that state legislatures are best placed to define and balance unenumerated rights.
Memoirs opposing the Mississippi ban defend Roe deer and Casey, asserting, for example, that they “were and are correct” and reflect a good understanding of legality and equal protection. They also stress the importance of maintaining precedents; a common refrain among submissions supporting the Jackson Women’s Health Organization is that Roe deer resisted for half a century.
But some go further, arguing that it would be risky and unwise, even dangerous, to replace the Deer / Breakage framework. Its dismantling would produce “chaos” and “upheavals”; the American Bar Association opposes this “perilous step”. Respondents even imply that the reversal Roe deer / Breakage could destabilize privileged precedents on the right, such as those related to firearms law. You may disagree with these memories, but you have to admit that they understood the mission. Such arguments are designed to intensify the types of concerns in the minds of the three main ones.
Indeed, an interesting motive in some memoirs pleading to defend Roe deer / Breakage (including one by the Justice Department of the Biden administration) is the invocation of Judge Barrett’s last term agreement Fulton v. City of philadelphia. Barrett has hinted that she is in favor of rescinding a long-standing precedent, a precedent that several of her Conservative colleagues believe should be rescinded. But she voted not cancel because, in part, she wasn’t convinced there was a viable replacement on hand. The Jackson Women’s Health Organization brief explicitly cites Barrett and goes on to argue that Mississippi “has nothing serious to offer” to replace the central viability line at Caseyand that the state’s alternatives are “impractical” and “unstable”. After quoting Barrett, the DOJ brief refers to Mississippi’s “inability to come up with a viable alternative” and says the state’s “laconic” discussion of the consequences “doesn’t even begin to explain” how the tribunal would deal with future business if the state’s argument was successful. It is not difficult to see that these briefs were written with Barrett’s mark of restraint in mind.
However, Mississippi and several amici to do offer the outlines of a Roe deer / Breakage replacement. The Mississippi brief argues for the return of abortion to the political process: since the Constitution says nothing about abortion and the right to abortion is not a freedom deeply rooted in history or American tradition, such matters should be left to state-level policy making. As the State Response Memorandum argues, “when this Court returns this issue to the people, the people can debate, adapt and find workable solutions.” But the top three are likely to ask, “What are the limits of what states can decide?” “
The pro-religious fund Becket argues Deer / Breakage should be “replaced by a standard which respects the text, structure, history and tradition of the Constitution”. While the brief implies that the abortion debate should be referred to state legislatures (such as capital punishment and assisted suicide), the top three will likely ask, “All state regulations on abortion compatible with the structure, history and tradition of the Constitution? “
The National Right to Life brief is probably the most focused on creating new standards to guide court review of abortion laws. He is proposing a new “roadmap” that would remove most of the current rules in an effort to put an end to the current “case law of doubt”. This would, among other things, erase the distinction between pre-viability and post-viability, require courts to consider state interests at all stages of a pregnancy, and require courts to assess the interests of the child. Condition claimed under normal examination rules. The central point of the brief is that a clear set of principles is needed, because otherwise the court could answer the only narrow question under consideration – whether all pre-viability abortion bans are unconstitutional – but leave a mountain of d other unanswered questions. However, the brief seriously disappointed many by not calling for the overthrow of Roe-Casey, serving as a warning that if the three keys favor procedure over principle and modesty over courage, the opportunity offered by Dobbs could be wasted.
By the time oral argument begins, Mississippi’s brief, in conjunction with the amicus briefs aligned with it, will likely have solidified sentiment among the six more conservative judges than Roe deer and Casey were badly decided and that there are strong arguments in favor of their cancellation. But we know the retained and institutionalist tendencies of the three keys. So how does Mississippi thread the needle?
One of the best lines of one of the memoirs comes from the Becket Fund: “Institutional sins are often the most difficult to repent, because they require institutional actors who arrived later to realize the mistakes of their predecessors” . Today, Mississippi’s best strategy for winning majority is to name sin shamelessly while clearly and fully outlining a convincing, principled path to redemption.