Did the Court Have Jurisdiction in Dobbs?

In deciding Dobbs v. Jackson Women’s Health, the Supreme Court issued a momentous constitutional ruling while suggesting that it lacked jurisdiction to do so. In particular, the Dobbs majority appears to state that the abortion providers who brought the case lacked standing to assert their patients’ abortion rights. 

This point came up in a roundabout way. When making its case to overrule, the Court stated that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.” As one salient example, the Court observed: “The Court’s abortion cases .… have ignored the Court’s third-party standing doctrine.” The Court then dropped the following footnote (with citations shortened):

“Compare Warth v. Seldin, 422 U.S. 490, 499 (1975), and Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 15, 17-18 (2004), with June Medical, 591 U.S., at ___  (ALITO, J., dissenting), id., at ___ – ___ (GORSUCH, J., dissenting) (collecting cases), and Whole Woman’s Health, 579 U.S. at 632, n. 1 (THOMAS, J., dissenting).”

The clear import of this passage is that abortion providers should not be afforded third-party standing to assert the rights of their patients. More specifically, the Court indicates that the June Medical and Whole Woman’s Health majorities were wrong to find that the abortion providers had standing. The dissenters in those cases, it seems, now hold sway. And, in fact, all three cited dissenters—Alito, Gorsuch, and Thomas—joined the Dobbs majority.

But Dobbs itself was a third-party standing case brought by an abortion provider on behalf of its patients. So if the Dobbs majority didn’t believe that there’s third-party standing in these types of abortion disputes, how could it reach the merits—much less overrule decades of precedent and install a completely different doctrinal rule?

One possibility is that the majority felt that it could rely on third-party standing precedents that it disagreed with. This solution must lean quite hard on the idea that following precedent is always or almost always permissible. If the Court is ever subject to an obligation to overrule case law, after all, that duty would probably arise when the majority itself concludes that the very precedents essential to its present use of jurisdiction are incorrect. 

Moreover, the Court’s overall discussion of precedent seems inconsistent. How could the Court have permission to rely on admittedly erroneous third-party standing precedents even as it insisted that Roe and Casey had to be overruled?

Another possibility is that most members of the majority believed both that the third-party standing problem was prudential and that case-specific prudential factors supported overlooking the problem. Perhaps the state defendants didn’t do enough to challenge third-party standing, or the courts below didn’t adequately opine on the issue, or the Court could rely on its own discretionary decision to decline review of this question.

But, consistent with case law, the relevant justices have emphatically agreed that third-party standing rules exist primarily to protect the interests of the asserted rights holders. So it would be very strange if the choices of non-rights holders, namely third-party litigants and courts, could deprive rights holders of the ability to protect their own rights. 

Underscoring this point, the Dobbs majority ultimately relied on the specific merits claims and concessions that the third-party litigants made. For instance, the Court repeatedly cited the abortion providers’ dubious claim that no half measures were available. Would the actual rights-holders have been as eager to raise the stakes in that way? 

A final possibility is that the majority felt that it could hold the Dobbs dissenters to their jurisdictional views. After all, the dissenting justices have insisted that there is third-party standing in cases like this one. But is jurisdictional turnabout fair play?

It’s especially hard to see how Justice Thomas, whose vote was critical to the outcome, could exercise jurisdiction in Dobbs. In the past, Thomas has argued that this kind of jurisdictional defect is constitutional in nature and, therefore, both non-waivable and non-prudential. In a pre-Dobbs post, I suggested, based on his prior opinions, that Thomas might accept the jurisdictional conclusion of most justices. Again, however, it seems that most of the Court saw a jurisdictional problem in this kind of case.

Does all this mean that Dobbs is extra-jurisdictional and, therefore, not a valid precedent? Perhaps—or perhaps not, depending on one’s views of standing and precedent. 

I’m more confident about two related points. First, Dobbs’s willingness to exercise jurisdiction makes sense only if there’s a lot of discretion at work here, either at the level of precedent or internal to the doctrine of third-party standing (or both). Second, the majority’s apparent use of discretion is both unexplained and objectionable, based on what those very justices have previously argued.

We’re All Textualists Now… When It Suits Us

Justice Kagan is responsible for two contradictory and fascinating maxims. In 2015, she famously said that “We’re all textualists now.” And then, this summer, she pointedly complained that “The current Court is textualist only when being so suits it.” To my mind, Kagan’s newer statement is descriptively accurate but normatively misdirected. Rather than lamenting the Supreme Court’s suppressed interpretive discretion, she and the other justices should embrace it.

As a newcomer to a conservative Court, Kagan proved that she fit in by honoring textualism. But after the Court shifted further rightward, Kagan fell more often into dissent. And so, having accrued valuable textualist credibility, Kagan is now trying to cash it in. In recent cases on the major question doctrine, for instance, Kagan has started pointing out that the majority is deviating from strict textualism—which, she assumes, is the correct way to do legal interpretation.

There are at least two problems with Kagan’s new approach. First, it isn’t working. The majority is evidently comfortable enough with its own view of the law, including the newfound exception to strict textualism recognized by the major question doctrine. Second, it rests on the controversial notion that textualism is legally correct. Kagan’s natural ideological allies are especially unlikely to agree that textualism is interpretation’s lodestar.

The obvious alternative to what Kagan is doing would be a return to type. Much as Kagan’s predecessor, Justice Stevens, warred against Justice Scalia’s textualism, Kagan (or her liberal colleagues) could try to champion non-textualist methods. But that approach is awkward when textualism has garnered so much support. It seems to concede that, under existing interpretive practice, the Court is getting it right. And, of course, textualism has considerable appeal and so is hard to vanquish.

I would like to suggest a third option. The basic idea is to acknowledge that the law of interpretation, while real, is substantially permissive. As a result, the justices have an awful lot of lawful discretion, and the most contested cases do not normally turn on formal law. Rather, many outcomes are determined by informal law, such as a judge’s personal precedents, or non-legal considerations, such as a particular judge’s views on morality or policy.

Acknowledging legal interpretation’s substantial permissiveness would come with a number of benefits. For one thing, permissive interpretation is both descriptively and normatively superior to either embracing or rejecting strict textualism. As Kagan’s recent comments ruefully acknowledge, actual interpretive practice isn’t all that textualist, even when it comes to the current Court. Moreover, textualism’s critics are right that rigid adherence to text would be bad.

Permissive interpretation would also come with several strategic benefits for frequent left dissenters like Kagan. First, it would undermine the majority’s efforts to deflect responsibility by claiming to be bound by law. Second, it would allow the dissenters to show contradictions or hypocrisy among the majority justices and their personal precedents. And, finally, it would establish that what the Court decides today need not be decided the same way tomorrow. 

Of course, permissive interpretation would also come with certain drawbacks. If interpretation is avowedly permissive, then some or all recent majority opinions are probably consistent with the law. Dissenters would therefore have to clarify that their accusations of personal inconsistency do not generally amount to allegations of unlawfulness. The dissenters would also have to own up to the critical role of their own discretion and personal precedents.

Yet even those drawbacks would actually be net beneficial. It is convenient, or easy, for justices to insist both that the law controls all outcomes and that the law is always on their side. But those claims work only when preaching to the choir. And because exaggerated legalism helps the Court deflect even well-taken criticism, it hampers political efforts to check judicial decisionmaking. In truth, the law is both a limit and a license. Dissenters can admit as much.

Take the decision to overrule Roe v. Wade in Dobbs v. Jackson Women’s Health. The left and right are locked in disagreement over whether the outcome in Dobbs was simply prohibited or mandatory. But each position shows why the other is wrong. And, for the left, establishing that Dobbs was discretionary is worth conceding its formal permissibility. Only by revealing the scope of existing interpretive discretion can critics effectively assess both the role of the justices and the appeal of court reform.

If you have followed me this far, the question becomes: How should the justices acknowledge and manage the law’s permissiveness? The answer, I think, is to set rules of legal permissibility—that is, conditions sufficient to show that an interpretation is lawful. In a new draft paper, I’ve argued for just such an approach, which is modeled on the British “basic rules” of interpretation. These rules would mark zones of interpretive discretion where that discretion is most desirable.

I support permissive interpretation because it is correct, or more so than the alternatives. And, in the long run, it’s also in everyone’s best interests. But I’ve framed this post from the perspective of left justices because, as Kagan’s recent comment shows, there is currently an unusual incentive for at least the left wing of the Court to recognize permissive law. By belatedly admitting interpretation’s permissiveness, Kagan has taken an important step toward embracing it.

Overruling by Ignoring

There’s been a lot of talk lately about SCOTUS’s practice of overruling precedents by first ignoring them and then declaring them bad law. The discussion was sparked by the Court’s recent declaration that it had “abandoned” the Lemon test, with other actual or anticipated examples including Chevron, Casey on stare decisis, and Korematsu. Tendencies to ignore or evade case law might be likened to patterns of gradual precedential erosion, involving cases like Bivens, Flast, and Miranda. 

Most of the commentary on overruling-by-ignoring has been critical, but I’m not sure that that negativity is warranted. Like one-last-chance decisions and other forms of judicial gradualism, overruling-by-ignoring has a lot to be said for it. In an essay focused on Teague’s watershed exception, I outlined the case for these “fait accompli overrulings”:

[D]oes the Court illegitimately evade stare decisis by declaring that an overruling has already occurred, even though no prior decision had so declared? [T]he stare decisis analysis can be regarded as “disciplining.” Yet that discipline is avoided through overruling as a fait accompli. Surely, one might think, a stare decisis analysis is called for at some point in a precedent’s demise. The “retaining no vitality” line [in Edwards v. Vannoy] could even be viewed as a bad-faith strategy for undermining precedent.

But . . . the situation is more complicated. The problem with fait accompli overrulings is especially severe if we imagine that the earlier ruling was undertaken with the follow-through in mind. But it’s possible, even likely, that the earlier ruling wanted to create a period of precedential tension, rather than knowing precisely how things would be resolved. If experience turned out to favor the later ruling over the earlier one, then the case for overruling would have been made. And if not, then not. The case for good faith grows still stronger if many years—and judicial appointments—lie between the practical and formal overrulings.

We can better see both the appeal and the distinctiveness of fait accompli overrulings by placing them in historical perspective. To a great extent, these rulings harken back to an earlier era, when precedential principles were not made but found. Today, lawyers often assume that a case loses precedential value only if and when a court-as-legislature formally declares it to be repealed or “overruled.” But, at common law, a judicial decision could be set aside for already being odds with the custom or practice of the courts in general. Experience, one might say, can gradually reveal a once venerable precedent’s error. Similar logic may explain the Court’s recourse to “the court of history” in disavowing Korematsu, even though that precedent had never been formally overruled.

All this to say that overruling by fait accompli . . . is at least plausible and possibly even preferable to legislative overruling pursuant to the stare decisis factors. In general, showing that a case has gone by the wayside is harder, calling for greater judicial patience and humility, than simply running through a four-part, one-and-done rubric. So a pattern of erosion or evasion would seem to qualify as a basis for overcoming stare decisis. To harmonize this conclusion with extant doctrine, such a pattern might be treated as a “special factor” within the stare decisis analysis.

Let me add two comments. 

First, the propriety of a fait accompli overruling may depend on just what the Court has done to erode or evade. In general, these overrulings are most justifiable when the Court has suggested that the original precedent can be fully discarded—and least justifiable when the Court has insisted that the core of the beleaguered precedent abides. The logic here is simple. Intimations of a precedent’s impending demise provide heightened notice of what is to come, whereas reassurances that the precedent survives could invite new or ongoing reliance.

Second, lower courts do and should play a dynamic role during periods of precedential tension. Like other observers, savvy lower-court judges are well aware of cases that seem never to gain traction with the justices. That sort of pattern can properly be viewed as a “signal” inviting the precedent’s “narrowing from below.” So, when precedents remain in force but are clouded by doubt, lower courts often make appropriate adjustments. And those experiments can helpfully inform SCOTUS’s ultimate decision to overrule. 

The bottom line: if the Court is being too cavalier with precedent, then fait accompli overrulings likely have more to do with the solution than the problem. 

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.

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?

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?

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.

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. 

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.

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.