I am still making my way through the audio of yesterday’s arguments over the constitutionality of Mississippi’s law banning abortions after 15 weeks. Between the chunk I heard yesterday morning before work, what I heard last night when starting it from the beginning, and browsing through the transcript, I have probably heard 2/3 of it (some out of context) and have a decent idea of the whole. My overall impression at this point is this:
So maybe he concurs in a 6-3 opinion? I could live with that. Hell, I'd cheer for that. https://t.co/ibrZZcfup8
— Patterico (@Patterico) December 2, 2021
An hour after I tweeted that, Sarah Isgur tweeted this very similar impression:
Bottom Line on Dobbs: This is a 5-1-3 vote in conference on Friday. Thomas, Alito, Gorsuch, Kavanaugh, Barrett uphold MS 15-week ban by overturning Casey. Roberts concurs but would uphold Casey and get rid of viability line. But we've seen votes switch after conference before…
— Sarah Isgur (@whignewtons) December 2, 2021
I thought I would share a couple of questions I found relevant.
This question from Justice Kavanaugh at page 106 of the transcript goes to the heart of just what the Court is doing by involving itself in these abortion cases:
JUSTICE KAVANAUGH: You — you make a very forceful argument and identify critically important interests that are at stake in this issue, no doubt about that.
The other side says, though, that there are two interests at stake, that there’s also the interest in — in fetal life at stake as well. And in your brief, you say that the existing framework accommodates — that’s your word — both the interests of the pregnant woman and the interests of the fetus.
And the — and the problem, I think the other side would say and the reason this issue is hard, is that you can’t accommodate both interests. You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time, and that’s why this is so challenging, I think.
And the question then becomes, what does the Constitution say about that? And I just want to get your reaction to what the other side’s theme is, and I’ve mentioned it in my prior questions.
When you have those two interests at stake and both are important, as you acknowledge, why not –why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this? And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.
Why is that not the right answer?
I have a very strong feeling that Justice Kavanaugh thinks that is the right answer. And the above passage, while expressed without the flair and sarcasm that might have been employed by Justice Scalia, is perhaps the most Scaliaesque thing I heard in the argument.
I also found this question from Justice Kavanaugh at page 78 of the transcript to be one of the most revealing on his views of stare decisis — i.e., the effect of precedent:
JUSTICE KAVANAUGH: And I want to ask a question about stare decisis and to think about how to approach that here because there have been lots of questions picking up on Justice Barrett’s questions and others. And history helps think about stare decisis, as I’ve looked at it, and the history of how the Court’s applied stare decisis, and when you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed.
If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent. Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person/one vote. West Coast Hotel, which recognized the states’ authority to regulate business. Miranda versus Arizona, which required police to give warnings when the right to — about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. Mapp versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Gideon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.
In each of those cases — and that’s a list, and I could go on, and those are some of the most consequential and important in the Court’s history — the Court overruled precedent. And it turns out, if the Court in those cases had — had listened, and they were presented in — with arguments in those cases, adhere to precedent in Brown v. Board, adhere to Plessy, on West Coast Hotel, adhere to Atkins and adhere to Lochner, and if the court had done that in those cases, you know, this –the country would be a much different place.
So I assume you agree with most, if not all, the cases I listed there, where the Court overruled the precedent. So the question on stare decisis is why, if — and I know you disagree with what about I’m about to say in the “if” — if we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?
I choose these passages to show why, of the people whose votes might be uncertain — Roberts, Gorsuch, Barrett, and Kavanaugh — I have the most confidence in Kavanaugh’s position.
I could not read Barrett, at least based on what I have heard so far, but I think she may be on board. I may let you know once I have heard it all.
Gorsuch’s questions seemed designed to cut off the idea that one could reach some sort of Robertsesque compromise wherein the Mississippi law could somehow be upheld without overruling Roe and Casey. The parties weren’t having it, and none of the justices were having it except for Roberts. Hence the predictions above.
One more question to highlight, from Justice Alito:
JUSTICE ALITO: The brief for the American Historical Association says that abortion was not legal before quickening in 26 out of 37 states at the time when the Fourteenth Amendment was adopted. Is that correct?
MS. RIKELMAN: That is correct because some of the states had started to discard the common law at that point because of a discriminatory view that a woman’s proper role was as a wife and mother, a view that the Constitution now rejects, and that’s why it’s appropriate to do the historical analysis at a higher level of generality.
JUSTICE ALITO: In the face of that, can it said that the right to — to abortion is deeply rooted in the history and traditions of the American people?
This will be central to Justice Alito’s opinion, and I bring it up because the question well highlights the flaw in that silly article I critiqued at my Substack (which you can subscribe to here) claiming that there is an “originalist case for abortion.” The point here is: an originalist case for abortion cannot be shown by showing that several states allowed abortion when the Fourteenth Amendment was adopted. Any such case is torpedoed by a showing that several (and actually a majority) of states banned abortion. Given that, how can anyone show that abortion meets the Supreme Court’s definition of a fundamental right — which is a right that is “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Those are quotes from Washington v. Glucksberg (1997) 521 U.S. 702 and you are going to see them in Alito’s opinion. (If he writes one, and I think he will — at least a concurrence.)