Does Textualism Defeat the Major Questions Doctrine?

The major questions doctrine has become, well, a major question of interest at the Supreme Court these days. Some critics, including Justice Kagan, have suggested that at least certain versions of this doctrine may be contrary to textualism. While I too am concerned about this doctrine, I think that its incompatibility with textualism has been overstated. 

Let me illustrate this point by reproducing part of an exchange between Justice Kagan and the West Virginia Solicitor General during the recent argument in West Virginia v. EPA:

JUSTICE KAGAN: … [H]ow big does a question have to be or how do you know when it’s big enough [to trigger the doctrine]?

SEE: … [W]e can also look at the broader economic and social consequences.

JUSTICE KAGAN: And — and do you look at those now? I mean, I would think that if this is a rule of statutory construction, and – and I would think that whether or not it has any kind of constitutional links, that the question would be what the Congress at the time thought and what the circumstances at the time were.

It seems to me quite irrelevant to rules of statutory construction under the theories that this Court has most frequently used in recent years about, like, oh, if we look around the world today, we see that this particular rule has a big impact.

Kagan’s basic argument is straightforward. Because the major questions doctrine is supposedly a guide to the enacted text’s meaning, we should care about the perspective of a legislator or reader at the time of enactment. Looking instead to present-day consequences would be atextual and so runs afoul of “the theories that this Court has most frequently used in recent years.” (In raising this point, Kagan seemed to echo a similar argument set out by Professor Ben Eidelson in an insightful twitter thread.)

Kagan’s argument makes ample sense if we think of the major questions doctrine as an epistemic aid to understanding the meaning of a past enactment. In general, an expression’s context helps determine its meaning. And a statute’s context includes whether a particular text was thought to be “major” in terms of its consequences. If that is the right view of the major questions doctrine, then Kagan is probably correct about its implications.

But there is at least one other way of understanding the major questions doctrine and many similar interpretive principles. Instead of being an epistemic aid to ascertaining contextual meaning, the doctrine could be a separate interpretive principle in its own right. More specifically, the doctrine could tell courts: “When a statutory meaning is sufficiently indeterminate, opt for the reading that avoids regulation of major questions whenever those questions arise.” 

So understood, the major questions doctrine would be perfectly compatible with textualism and other “theories” that the Court has “used in recent years.” Textualism can acknowledge that statutes are sometimes ambiguous, vague, or otherwise indeterminate at the time of enactment. The enacted text, then, would not change meanings over time. What would change is how a separate principle (the major questions doctrine) tells courts to resolve the indeterminacy. 

In this respect, the major questions doctrine can be likened to Chevron. Long celebrated by textualists like Justice Scalia, Chevron directed courts to read “ambiguous” statutes based on post-enactment executive-branch interpretations. When a court updates to account for a new agency interpretation of a statute, it does not hold that a textual meaning has changed. Rather, the Chevron doctrine directs the court to resolve an old textual indeterminacy in a new way. So the major questions doctrine can be viewed as Chevron’s mirror image.

Notably, the evident tension between being a textualist and recognizing atextual interpretive principles helps explain why these doctrines are usually framed in terms of resolving ambiguity. In principle, an atextual interpretive principle could operate even when a statute is textually clear—somewhat like the way that the Dictionary Act overrides otherwise plain statutory terms. Yet it would acutely defy textualist intuitions for an atextual principle to overcome plain texts. By contrast, turning to an atextual principle may seem less objectionable if the statutory text in question is itself ambiguous.

But perhaps textualism poses a different kind of problem for both of these doctrines—namely, where do they come from? No authoritative text (apart from judicial decisions) seems to express either the major questions or Chevron doctrines. Now, that’s no problem if the Court can create new interpretive principles on its own authority, perhaps for prudential reasons. But that isn’t the sort of thing that one often hears from self-declared textualists.

Yet even interpreters who are generally textualist needn’t disclaim all non-textual legal principles. Scalia again offers an example, as he was prepared to infer substantive canons from constitutional texts that require implementing doctrine (among other things). So perhaps the major questions doctrine can find an appropriate basis in non-delegation principles or elsewhere. In this way, the effort to turn textualism against the major questions doctrine ends up transforming into, or ultimately depending upon, a seemingly different debate about constitutional interpretation and the separation of powers. 

The comparison between Chevron and the major questions doctrine does point out a glaring doctrinal reversal. In essence, many textualists, including some justices, have abandoned Chevron in favor of the major questions doctrine. This shift invites cynical explanations, and commentators have obliged. But here, too, the objection isn’t really rooted in textualism. Rather, the issue has to do with why textualists have traded one ambiguity-resolving maxim for another. Because both doctrines seem comparably textualist and non-textualist, the Court’s overall commitment to textualism may have remained constant.

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Is Justice Kagan Done With Stare Decisis?

The Court recently heard argument in Ysleta del Sur Pueblo v. Texas, a statutory-interpretation case about Indian tribes’ ability to regulate or conduct games like bingo. But perhaps the most talked-about aspect of the case was a much more broadly applicable rumination by Justice Kagan. Here it is:

JUSTICE KAGAN: I’m about to take you outside the scope of this case, so I apologize beforehand. But Justice Alito raised what to me is an interesting question that I’ve been thinking about a good deal about what these substantive canons of interpretation are and when they exist and when they don’t exist. 

They’re all over the place, of course. It’s not just the Indian canon. Next week, we’re going to be thinking about the supposed major questions canon. There are other canons. 

I mean, if you go through Justice Scalia’s book, you’ll find a wealth of canons of this kind, these sort of substantive canons. Some of them help the government. Some of them hurt the government. 

Is there any way that the government has of coming in and saying, like, how do we reconcile our views of all these different kinds of canons? Maybe we should just toss them all out, you know. 

MR. YANG: Well –­

JUSTICE KAGAN: I mean, I think kind of we should, honestly. Like, what are we doing here?

Justice Kagan has recently been the Court’s most steadfast proponent of stare decisis. And that commitment to precedent has expressly extended to questions of method and interpretation, such as Auer deference and stare decisis itself. So for Kagan to suggest “toss[ing] out” all substantive canons—a set of legal principles that are indeed “all over the place”—is surprising. 

What could explain this apparent change? Here are a few possibilities. 

First, experience may have convinced Kagan that substantive canons cannot be “reconcile[d],” perhaps because they’re contradictory in purpose or effect. Interestingly, this realist-seeming move could render Kagan even more textualist than Scalia, who (as she notes) made great use of substantive canons.

Second, Kagan may think that it is so essential to overrule “the supposed major questions canon” that she is prepared to reject any other legal principle that stands in the way. The bad reasoning and consequences of one substantive canon thus provide a strategic reason to ditch all the others, too.

Third, Kagan might finally have given up on trying to make strong stare decisis happen. Commentators have long speculated that Kagan has tried to take stare decisis very seriously so as to set an example or tone that could save Roe and other left rulings from being overruled. Perhaps that effort has finally failed.

All three explanations can be interlinked. For example, if Kagan now thinks that she can’t win over key votes by relying on stare decisis, then perhaps it’s time to appeal to the majority’s textualism in the hope of slowing down the major question doctrine’s march across the administrative state. And that strategy might be especially targeted at Justice Barrett, who—as Will Baude points out—has written an important article criticizing substantive canons. On this view, one contingent strategy is replacing another.

But Kagan’s personal commitment to stare decisis has seemingly run so deep of late that a more fundamental change or disillusionment may be taking place. Perhaps Kagan views the Court as doing great harm precisely because it is walking away from its own textualist orthodoxy and supposed commitment to stare decisis. And if the majority isn’t keeping faith with once-settled practices, why should anyone else?

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Did US v Zubaydah Create Precedent?

The recent decision in US v. Zubaydah overtly implicated important matters like torture and state secrets. But it also raises an interesting, possibly consequential question regarding the relationship between judgments and precedents. 

In brief, the case involved a request for discovery relating to the alleged torture of Zubaydah while held in a so-called “black site.” The Court denied the discovery request in what looks like a normal majority decision. Most of Justice Breyer’s opinion was joined by Roberts, Kavanaugh, Barrett, and Kagan and so was labeled the “Opinion of the Court.” Yet Kagan did not join the judgment of the Court. Whereas the majority reversed and remanded with instructions for dismissal, Kagan would have remanded for further proceedings. 

But wait—the Opinion of the Court also has a majority on the disposition or judgment. Without Kagan’s vote, how was that possible? 

The answer is that Justices Alito and Thomas concurred in part and concurred in the judgment. Basically, the only part of the Breyer opinion that they joined was the statement of the proper disposition below. Because they supported a far more pro-government test, Alito and Thomas didn’t join any significant part of the Breyer opinion’s reasoning. 

The result is very strange. There are five votes for certain reasoning. And there are six votes for the disposition. But those votes are only partially overlapping. As a result, there is no five-justice group that supports both the Court’s opinion and its judgment.

This weird situation raises a pretty basic question: what is an Opinion of the Court, and why is it treated as precedential? A few different answers spring to mind. 

First, the Opinion of the Court could be whatever published text gets five joins. The fact of judicial endorsement, even in the absence of any deeper agreement, might be enough to create precedent. So whatever is marked as the “Opinion of the Court” just is. The main virtue of this approach is its clarity: it lets lawyers know right away what’s precedential and also gives the justices a straightforward way to offer whatever guidance they desire. 

Second, the Opinion of the Court might have to be the reasoning behind a particular, authoritative judicial action—a judgment. The Court, after all, isn’t a legislature and, traditionally, its legitimacy springs from the resolution of a party-based dispute. So a link to the judgment could be critical to explaining why the Court’s “Opinion” is legally relevant. On this view, there isn’t actually a precedential majority opinion in Zubaydah.

Third, maybe the Opinion of the Court represents the practically consequential, reasoned agreement of most justices. Several pragmatic reasons support this sort of approach. For instance, majority agreement as to actual case outcomes might tend to be especially accurate, wise, and/or predictive of future judicial behavior. By comparison, reasoning divorced from any outcome may be unreliably carefree, and an outcome supported only by conflicted reasoning may seem incoherent. On this last approach, any precedent in Zubaydah would be diminished, if not negated, by Kagan’s inability to agree on what comes next. 

In one sense, these theoretically inflected options are academic. But, in another sense, they’re acutely practical: when called upon to apply Zubaydah, will lower courts, and the Court itself, eventually choose among these options, or even consider them?

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Did the Supreme Court Overrule Equity?

One aspect of yesterday’s OSHA vaccination decision really surprised me: its disregard of equitable discretion, to the point of denying that it exists. If taken at face value, this aspect of the Court’s ruling represents a major break from settled practice. 

The statutory question was whether OSHA had authority to promulgate a conditional vaccination requirement for many employees. The Court answered in the negative, but that did not end the case. The Court then had to go further and decide whether to grant a stay or injunction of the government’s temporary regulation. 

That sort of relief is equitable in nature and usually guided by a series of factors that include not just the merits but also whether there is irreparable injury, whether the balance of equities favors relief, and whether relief is in the public interest. See, eg, Nken v. Holder (2009); Alabama Assoc of Realtors v. HHS (2021) (Kavanaugh, J., concurring). More broadly, equity has long been viewed as a source of judicial discretion, allowing courts to smooth over the law’s harder edges. This is the kind of ancient judicial tradition that any historically minded jurist should take very seriously.

In the OSHA case, there was a strong argument that equity precluded broad relief. If it accepted the executive branch’s view that thousands of lives were at stake, the Court would be hard-pressed to deny that both the balance of equities and the public interest counseled against interim relief. 

Yet here is the entirety of what the Court said, with the operational sentences in bold:

The equities do not justify withholding interim relief. We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. See Application in No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32– 33; see also 86 Fed. Reg. 61475. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. OSHA Response 83; see also 86 Fed. Reg. 61408.

It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

The Court appears to be saying that its “role” is not to consider the “equities.” Importantly, the Court does not claim that any remedial statute has cabined its equitable discretion. Instead, the idea appears to be that the Court, because of its function or nature, cannot “weigh . . . tradeoffs.” Again, however, equity is about doing just that. And equitable discretion is not only recognized in the Court’s case law but part of a tradition that dates back centuries and is named in the Constitution.

Perhaps the passage above is somehow the unfortunate result of hasty writing by justices focused on the merits. The Court may actually have engaged in an equitable analysis, or thought a remedial statute cabined its discretion, or otherwise believed that stays of regulations are exempt from the normal demands of equity. The best reason to adopt one of those heroic readings is that it is hard to believe that the Court would intentionally reject equity in such an elliptical and spontaneous way.

Even if the passage wasn’t intended to repudiate equity, however, the Court does seem to be tilting against it. Weighing hard tradeoffs is the heady work of elected officials, the passage seems to be saying, not humble judges like us. 

Yet the choice to curtail judicial discretion, or to promote the law’s determinacy, is itself intensely value-laden. So judicial efforts to rigidify equitable discretion are not actually humble. Even more importantly, equitable discretion is not just a power but a burden, too. Sloughing off equitable principles can therefore liberate judges, including by making judicial decisions seem more self-executing and automatic. 

The Court may not have wanted to take responsibility for the discretionary choice to block the regulation. But equity required it to do so.

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Should Justice Thomas Find Jurisdiction in Dobbs?

One fascinating wrinkle in Dobbs v. Jackson Women’s Health is the suppressed question of standing. This issue has a certain edge for Justice Thomas: given his past views, Thomas’s path to reaching the merits is a bit unclear and probably discretionary.

Originally included in the state’s petition for certiorari, the standing issue has to do with whether abortion providers can assert the rights of third-parties, namely, patients seeking abortions. The Court declined to grant review of this issue in Dobbs, perhaps because the issue had recently been resolved, in favor of standing, in June Medical (2020).

But Justice Thomas cannot ignore the third-party standing issue. Thomas was emphatic in June Medical that abortion providers lack Article III standing, which is an essential requirement of subject-matter jurisdiction. Bearing out that strong jurisdictional claim, Thomas insisted that this problem was not subject to waiver. 

One might respond that Thomas could simply follow the precedent set in June Medical and similar cases. But there, too, lies a question, for Thomas has defended only a limited approach to stare decisis. In Gamble v. United States (2019), Thomas’s separate opinion argued that the Court had permission to follow precedent in two situations. 

First, the Court may follow precedent when the justices have been given no reason to doubt a precedent’s validity, such as when no “previous opinion persuasively critiques the disputed precedent.” That principle does not apply in Dobbs, however, because Thomas himself criticized the third-party standing cases in June Medical.

Second, the Court may follow precedent that permissibly interprets the law. Here is how Thomas puts the point: “Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law.” 

This second principle could apply in Dobbs—but only if Thomas believes that the third-party standing cases adopted a “textually permissible interpretation.” And that conclusion is in tension with Thomas’s June Medical dissent, which was based on “a proper understanding of Article III’s case-or-controversy requirement.” So if Thomas sticks to his views on Article III, he might be obligated not to find jurisdiction in Dobbs.

Even if the second principle does apply, another question would arise. To repeat Thomas’s words with added emphasis: “Federal courts may (but need not) adhere to an incorrect decision” that is permissible. So even if the precedents are permissible and Thomas has the option to follow them, he would also have the option not to. How should he exercise that discretion?

That question relates to a third principle. In June Medical, Thomas voted to “remand with instructions to dismiss for lack of jurisdiction.” But he also noted: “Alternatively, if I were to reach the merits because a majority of the Court concludes we have jurisdiction, I would affirm, as the plaintiffs [abortion providers] have failed to carry their burden . . . even under our precedents.” This passage seems to extend the option to follow permissible precedents by recognizing a similar option to follow the majority’s current jurisdictional views. So the question again arises: how should Thomas exercise his discretion?

Thomas’s general commitment to judicial restraint might seem to counsel against exercising discretion to reach the merits. To again quote Thomas’s June Medical dissent: “In light of the ‘overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of an important dispute and to “settle” it for the sake of convenience and efficiency’” (citations omitted). Given this view, it might be odd for Thomas to vote for major changes in precedent while simultaneously denying that the Court has jurisdiction to rule at all.

Yet Thomas is at ease with discretionary adjudication in many situations. Apart from the above principles recognizing discretion as to stare decisis, in cases like AT&T v. Concepcion Thomas has played a critical role in forming majority opinions, even when he disagreed with the resulting precedents. And Thomas might further argue that normal principles of judicial restraint, even as to issues of subject-matter jurisdiction, do not apply in Dobbs. Perhaps the Court, in Thomas’s view, may be unrestrained when dismantling the products of unrestrained decision-making.

It will be interesting to see if Thomas addresses these issues—not least because his vote will likely be key to how Dobbs is decided. 

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Hard-line Advocacy in Dobbs—and Casey

To what extent can judges rely on the positions that advocates put forward? Last week’s oral argument in Dobbs tees up this question, as the parties generally threw cold water on any option other than a total upholding or overruling of existing precedent. But it turns out that that hard-line strategy has been tried before—in Planned Parenthood v. Casey.

Here is the first question from the Casey oral argument, with the counsel for Planned Parenthood at the podium:

Justice O’Connor: Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe against Wade in all its aspects. Nevertheless, we granted certiorari on some specific questions in this case. Do you plan to address any of those in your argument?

The advocate then resisted O’Connor’s suggestion, which led to additional questions in search of a more focused or nuanced analysis. The Court’s frustration culminated in the following remarkable exchange: 

Petitioner (Kolbert): It is our position, Your Honor, that if this Court were to change the standard of strict scrutiny, which has been the central core of that holding [in Roe v. Wade], that in fact, that will undercut the holdings of this Court and effectively overrule Roe v. Wade. To adopt a lesser standard, to abandon strict scrutiny for a less protective standard such as the undue burden test . . . would be the same as overruling Roe . . . .

Justice Kennedy: Well, if you are going to argue that Roe can survive only in its most rigid formulation, that is an election you can make as counsel. I am suggesting to you that that is not the only logical possibility in this case.

Of course, the Court’s pivotal justices ultimately did “abandon strict scrutiny for a less protective standard,” namely, the very “undue burden test” that the advocate had ruled out of bounds. And it turned out that that approach absolutely was not “the same as overruling Roe,” full stop. There were degrees of difference after all, and abortion advocates have come to celebrate and defend Casey’s preservation of what the Court deemed the “central holding” of Roe.

Now, in Dobbs, abortion providers are again asserting that any deviation from precedent is tantamount to overruling all relevant precedents. In their brief, for instance, the abortion providers state, with emphasis in the original: “any abandonment of viability would be no different than overruling Casey and Roe entirely.” And later: “There are no half-measures here.”

A similar story played in the Dobbs oral argument, with several justices (Thomas, Roberts, Kagan, Alito, and Gorsuch) asking different advocates about the possibility of narrow or nuanced ways of resolving the case. And, much as in Casey, the advocates offered little more than discouragement.

Were the advocates in these cases right to be so rigid? In Casey, the abortion providers’ decision to draw a hard line was obviously frustrating to critical justices and nearly led to complete defeat—except that, in the end, it didn’t. So perhaps Casey teaches that nuance is unnecessary for good advocacy, or even counterproductive. 

But whatever its lessons for advocacy, Casey does offer a clear lesson for the Court: a litigant’s resistance to giving an inch cannot be taken at face value.

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Who’s Afraid of Gradualism in Dobbs?

The Supreme Court may be poised to overrule Roe v. Wade and eliminate all constitutional abortion rights. That sweeping result is teed up in Dobbs v. Jackson Women’s Health Organization, a case to be argued on Wednesday. Yet whether to overrule nearly 50 years of precedent is not a question that the Court is prepared to answer. Even though both parties and many observers are eager for a final reckoning with abortion rights, the public and the Court itself would be far better served by a more gradual, judicious approach.

The initial problem is that, in Dobbs, the Court has not followed its normal deliberative process. Instead, Mississippi asked the justices to review an abortion prohibition that posed no disagreement among lower courts or any other conventional basis for review. After sitting on the case for nearly a year, the justices finally agreed to consider a single issue: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” That question focuses on viability, is concerned with whether “all” relevant restrictions are categorically unlawful, and identifies no specific precedent to be overruled. Onlookers were accordingly left to debate just what the Court had in mind in granting the case. 

Mississippi then seized the initiative by submitting a merits brief that primarily argued for overruling all precedents recognizing abortion rights—a possibility that the state’s certiorari petition had raised, if at all, only in a half-hearted footnote. So what had seemed like an important but limited challenge to abortion rights suddenly became a broadside attack on decades of case law. In response, the abortion providers objected to Mississippi’s bait-and-switch and briefly asked for dismissal of the case; but they also agreed that “There are no half-measures here.” So the parties ultimately offer the same unyielding choice between two starkly opposing options.

Yet advocates have strategic reasons for framing certain options for the Court while excluding others. Lawyers might avoid offering a half measure for fear of undermining their main argument, particularly when they are left to guess about the justices’ views. And political activists might prefer that the Court issue a precipitous ruling so that they can better mobilize against the judiciary. A partial defeat in court might be far less useful for politicos precisely because it would appear more legitimate or non-partisan. For these reasons, litigants do not necessarily speak for all affected people, and the fact that both sides pose a stark choice may only prove that the adversarial system has given way to political polarization. 

Normal caution might seem unnecessary in Dobbs because the issue of abortion rights is already so familiar to the justices. What law school graduate, after all, has failed to think about Roe? But partial knowledge is often the most confident, and deliberation has a way of revealing things we didn’t expect. Gradualism can also allow the Court to learn from experience rather than armchair speculation. The Dobbs briefs are full of predictions about what would happen—doctrinally, practically, and politically—if abortion case law changed. By moving incrementally, the Court can begin to replace those predictions with facts and ultimately make a more informed decision at a later date. 

The Roberts Court has repeatedly shown a similar instinct for gradualism. Before major decisions on issues like campaign finance regulation and same-sex marriage, for instance, the Court signaled its interest in issuing a transformative ruling long before actually doing so. In the meantime, the Court moved slowly, taking only small steps before bold action. The idea that the Court should give notice before issuing a disruptive decision, which I have called “the doctrine of one last chance,” has many benefits. Giving the losing side one last chance to make its case can clarify how the justices are reasoning through the issue, expose that reasoning to sustained scrutiny and criticism, and prompt the Court to adjust course. Even if the Court follows through on its initial views, providing notice can prompt action by the political branches and help smooth out disruptive legal changes. 

The Court’s newest justices have continued the one-last-chance approach. Earlier this year, the Court considered whether to overrule a major precedent on religious liberty. Justice Barrett, joined by Justice Kavanaugh, declined to do so—not because they thought the precedent was correct, but rather because they were unsure just how to replace it. There is no doubt that these justices have thought deeply about religious liberty, yet they still saw wisdom in proceeding cautiously. And that intuition may already have been borne out, given the “difficulty” of later cases. In Dobbs, a similar approach could support a limited holding, a request for additional briefing and argument, or dismissal of the case.

In an indirect way, the Court has already produced something like incrementalism on abortion rights. By allowing Texas’s SB8 to operate for several months, the justices have essentially allowed a major state to create a post-Roe world. But while that experience has fostered public debate and been informative in some ways, litigation over SB8 has so far focused on complex procedural issues, not the substantive and precedential questions pertinent to Dobbs. Given those differences, and the fact that the briefing in Dobbs was well underway when SB8 came into effect, the events in Texas are no substitute for caution in Dobbs itself. 

Of course, judicial gradualism can only achieve so much. Because the nation is divided by starkly conflicting legal and policy views on abortion, Dobbs will be met with second-guessing, if not condemnation, no matter how it comes out. Criticism, as they say, comes with the territory. What the Court can control, however, is whether it treats the issue of abortion rights with the care it deserves. Roe itself was famously faulted, including by Justice Ginsburg, for moving too fast. It would be ironic if Roe’s latest critics have failed to learn that lesson.

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Do the Justices Have Permission to Deny Review?

What legal principles govern the Supreme Court’s decision to grant review? 

This basic question is surprisingly hard to answer. Supreme Court Rule 10 states, “Review on a writ of certiorari is not a matter of right, but of judicial discretion” and then gives a series of factors that “indicate the character of the reasons the Court considers.” Justice Barrett recently drew attention to this issue. In Does v. Mills, the Court denied a request for an injunction regarding a state covid-19 vaccine mandate. Joined by Justice Kavanaugh, Barrett concurred because the case called for a “discretionary judgment about whether the Court should grant review in the case.” How should we understand this “discretionary” practice?

One option is to endorse an amorphous standard, such as “important cases” or “cases where the Court can do a lot of good.” This approach is highly merits-dependent, in the sense that what qualifies as “important” or worth the Court’s time will largely turn on one’s views of the law. A Court that embraced this approach would therefore tend to unsettle the existing legal landscape and reshape it according to the justices’ current legal views. 

Another option is to adopt strict rules, such as “grant only cases that pose a circuit split and cases where the United States has sought certiorari.” This approach will be relatively merits-neutral, in the sense that the criteria identified are independent of one’s own view of the law. But this option affords other actors control over the Court’s docket and would inevitably leave out extraordinary situations where certiorari would seem warranted. 

A third option is a rule of pure discretion. The justices could either grant or deny certiorari for any reason or no reason at all. As compared with the merits-sensitive standard and the merits-neutral rule, pure discretion would allow the Court to get the best of both worlds: it could leave most law undisturbed while acting in extraordinary cases. But unbridled discretion of course invites worries of arbitrariness, bias, and partisanship.     

Faced with this imperfect menu of options, a natural thought is, “Why choose just one?” The justices are free to mix and match decisional principles so as to create a hybrid regime. And, in my view, the Court has done just that.

First, the Court has established a standard for granting certiorari, focusing on whether a case poses an “important” question (Supreme Court Rule 10). This principle aims to ensure that the justices alter the law only when they have identified a legitimate reason for doing so. The upshot is a degree of accountability, both to the observing public and to themselves.

Further, there is a permission to deny certiorari. That is, the justices are generally entitled vote for inaction, leaving the law where it is. This permission is asymmetric, and unlike pure discretion, because it applies only to denials of relief. In essence, the permission encourages the Court to err on the side of caution by ensuring that inaction is readily available. 

Finally, there is a presumption, even a mandate, in favor of review in certain frequently arising contexts, such as well-presented circuit splits or invalidations of federal statutes. These rule-like precepts qualify the permission to deny, foster predictability in the mine-run of cases, and establish baseline practices that can help guide the Court’s discretionary judgment. 

To my mind, the hybrid system just described is preferable to any one of the three norm types I described earlier (standard, rule, or discretion). Moreover, a hybrid system of some sort is probably the only decisional structure that can realistically be achieved, given the cross-cutting imperatives and views involved. Even functionalist justices want some determinacy and even formalist justices need an escape hatch every now and then.

This isn’t to say that the Court has already adopted and calibrated the perfect certiorari system. And we might want to embellish the account above, such as by adding a few “anti-permissions,” or considerations (such as invidious prejudice) that defeat an otherwise available permission. Still, recognizing the appeal and practical need for diverse norms is a critical first step to diagnosing any defects in the existing regime.

Similar hybrid systems can arise in other contexts, with one bearing special mention: stare decisis. Perhaps, as I have elsewhere suggested, stare decisis at the Court does or should operate not as a standard, rule, or principle of discretion, but rather as a mash up of all three. Consider the following simple schema: first, a standard for overruling; second, a permission to abide by precedent and so (as in the certiorari context) do no harm; and, finally, a mandate in favor of preserving statutory precedents.  

In other words, the certiorari process can be viewed, not as an exceptional opportunity for discretion, but rather as a miniature version of overall Court decision-making.

Update: There are a few more thoughts and comments over at Prawfs.

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Ely, Roe, and the Wages of Judicial Recklessness

Will Baude has a new post on John Hart Ely’s fascinating precedent-based defense of Planned Parenthood v. Casey. Part of what makes Ely’s defense so interesting is that he had strongly criticized Roe v. Wade, arguing that it was “not constitutional law and gives almost no sense of an obligation to try to be.” You should read the whole post, including Will’s commentary, but I want to focus on this paragraph by Ely:

I don’t have a well-developed theory of stare decisis, that is, of when courts should defer to precedent rather than reconsider it afresh; I’m actually not sure anyone does. My fear, of course, is that I don’t think Roe should be overruled because I approve of it politically if not constitutionally, and there may indeed be something there. I also think, as the letter suggests, that Roe has contributed greatly to the more general move toward equality for women, which seems to me not only good but also in line with the central themes of our Constitution. I don’t think a principled opinion along those lines could have been written at the time— “We don’t know exactly how, but somehow this holding will importantly help undergird a more general movement toward women’s equality, which movement is mandated by the Constitution” obviously doesn’t make it—but I am clear that overruling it now would wreak havoc on that constitutionally legitimate movement.

Ely is not saying that Roe engendered reliance and so we are stuck with a legally meritless ruling. Rather, Ely seems to be describing a constitutionally good outcome that could not have been achieved through constitutionally good methods. How can that be?

Here is one possibility. The justices may have a general duty to promote constitutional “themes” or values, subject to the following side-constraint: they must credibly ground their decisions in relatively determinate and identifiable legal sources, like constitutional texts. This side-constraint might be essential to preserving the Court’s overall legitimacy, even though the side-constraint’s application in any given case would prevent full realization of constitutional values. In this way, the demands of legal reasoning and judicial craft would give rise to a kind of constitutional underenforcement.

That account can explain Ely’s dueling views. In the first instance, Ely thought Roe was wrong because it flunked the side-constraint. But if the ultimate effect of Roe was to enhance overall constitutional values, such as by promoting gender equality, then Casey would look quite different. Because stare decisis supplied the determinate legal source that Roe lacked, Casey could satisfy the side-constraint.

On this view, stare decisis operates primarily as a permission or enabler, rather than as a constraint. The fact of supportive case law essentially gives the Court access to a set of reasons that would otherwise be out of bounds. For Ely, direct reflection on constitutional “themes” evoked “fear,” namely, the fear of being “politically” motivated. A similar thought might help explain some pragmatic approaches to precedent. For instance, Justice Scalia famously cast stare decisis as an exception to the rule that the Court must eschew openly pragmatic reasoning.

But does this account really allow for Ely’s continued condemnation of Roe? Perhaps Ely should have come to view Roe as an exceptional act of genius: while the justices normally have to engage in cogent legal reasoning to reach good outcomes, Ely apparently believed that the Roe Court was able to skip that step and intuit a constitutionally optimal holding. And why should we evaluate moments of judicial inspiration based on rules meant for normal cases?

Still, I don’t think that Ely had to view the Roe Court warmly because of its assertedly salutary legacy. Instead, Ely or someone like him could make use of the distinction between a harmful action and a reckless one. If Roe was reckless in the sense of being a dangerous bet with long odds, then Ely could continue to criticize the Court and warn against similar rulings in the future—even as he celebrated the gamble’s long-term pay off. The permission that precedent afforded Casey would not necessarily apply elsewhere.

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Should Court Reformers Attack the Idea of Law?

Continuing their important and timely project of promoting court reform, Professors Ryan Doerfler and Sam Moyn have written a scathing book review that nonetheless makes me think much more highly of the book being reviewed. At issue is Justice Breyer’s new “pamphlet,” as Doerfler and Moyn call it, and particularly its claim “that it would be dreadful to abandon the line between politics and law.” 

In their review, Doerfler and Moyn cast the failure of the law/politics distinction as the core reason to reform the Court. They argue that we have nothing to fear, and much to gain, from “open recognition that law is political.” It is easy to see why they would make that point. Defenses of the status quo sometimes insist that the Court is just doing law, so critics should take their political gripes elsewhere. Doerfler and Moyn want to preempt that defense by showing that the Court is really doing politics, rendering it a legitimate target for ideological critique. 

Yet the case for disempowering the Court doesn’t actually depend on rejecting the law/politics distinction and would be much more persuasive if it did not try to do so. 

For one thing, there is a difference between law and politics, haters notwithstanding. Just as a naïvely absolute law/politics division is oversimple, so too is it untenable to claim that law never has, or cannot possibly have, a practical, normative, or sociological identity different from politics. Doerfler and Moyn state that “Breyer comes exceedingly close to confessing that the Supreme Court is actually a political institution.” A more charitable reading of the book is that Breyer is channeling the sophisticated views of legality that are taught in jurisprudence courses every day. If Doerfler and Moyn embrace a similarly nuanced view, then perhaps there isn’t such a stark opposition between the reviewers and the Justice after all.

For another thing, the idea that the Court should be weaker is entirely compatible with the law/politics distinction. Perhaps the Court is just not very good at answering legal questions, at least in its current configuration. Or maybe the laws that the Court applies are themselves too capacious, or too amorphous, for democracy to flourish. If the Court is getting the law wrong, or if the law is itself undesirable, then we might have eminently good reason for judicial disempowerment—as many conservative critics of the Court have argued in recent decades. By seeming to insist on collapsing law and politics, Doerfler and Moyn prevent themselves from laying claim to these kinds of arguments and make adversaries out of allies.

Finally, frontal attacks on the law/politics distinction, besides being exaggerated and unnecessary, can indeed be very harmful. Breyer makes this point both in his book and in several interviews, and Doerfler and Moyn single it out for special rebuke. Here is one such passage from their article:

Identifying a very particular American institution with the “rule of law,” Breyer similarly remarked in a New York Times interview in late August that “tyranny, autocracy, irrationality” are the only alternatives. But Breyer’s belief that reform will bring lawlessness and oppression seems entirely melodramatic, given that no court in any other country enjoys the kind of policymaking authority our Supreme Court does—and those democracies often function better.

If Breyer is being “melodramatic,” then perhaps his critics are as well. In the interview that Doerfler and Moyn reference, Breyer was explicitly open to more careful reforms, like term limits. What Breyer is trying to say (I think) is that having a “rule of law” that is separate from politics is a precious, fragile thing. A society that completely rejects that separation, because it cannot see that judges do something different from politicians, is in trouble. Thus, we should guard against well-intentioned reforms that assume, or aspire to achieve, the collapse of law into politics. In this way, a melodramatic defense meets a comparably melodramatic critique. 

Doerfler and Moyn reply that the U.S. Supreme Court is the most powerful court in the world. Perhaps so, but it surely isn’t the only court premised on the existence of law. In essence, Breyer’s defense forces Doerfler and Moyn to shift to a different topic, one that they should have focused on all along: power. They can leave the law/politics distinction alone.

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