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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