Category Archives: Supreme Decision-making

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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Filed under Judicial Decision-making, Stare Decisis, Supreme Court, Supreme Decision-making

Morales-Santana’s Many Judgments (SCOTUS Symposium)

Yesterday, Morales-Santana held that an individual had been denied citizenship based on a gender-discriminatory law that violated equal protection. Yet the only practical effect appears to be that, in the future, even fewer people will obtain citizenship. That outcome has already prompted a lot of commentary, including from Howard, Ian, and Will. Here, I add two points. First, the Court’s exclusively “prospective” remedy appears not to have fully remedied the asserted discrimination, even on the Court’s theory. Second, the Court’s limited grant of relief interestingly blurs the traditional distinction between precedent and judgment.

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Lower Courts on Supreme Court Signaling

Debates over signaling, or unconventional precedential guidance to lower courts, played an important role in the same-sex marriage litigation leading up to Obergefell. Now, signaling is back thanks to religious accommodation litigation concerning the Affordable Care Act’s contraception mandate. Remarkably, lower courts have started to develop case law on whether and when signaling is appropriate.

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Narrowing the Third-Party Doctrine From Below

The Fourth Circuit made headlines yesterday in United States v. Graham, which holds in part that “warrantless procurement of [cell site location information] was an unreasonable search” in violation of the Fourth Amendment. There’s a lot going on in the Graham majority and dissent, and I recommend Orin’s ongoing posts on the merits. But it’s also interesting to consider Graham’s treatment of Supreme Court precedent regarding the “third-party doctrine.”

In my view, much of the disagreement between the majority and dissent in Graham is about whether to adopt the best reading of the Supreme Court’s third-party precedents or, instead, to narrowly read those precedents in light of new factual developments, other Supreme Court precedents, and the lower-court judges’ own first-principles views of the law. In this respect, Graham is hardly anomalous. When doctrines become out of date, the Court sometimes encourages lower courts to engage in narrowing from below, thereby facilitating the Court’s own reconsideration of precedent. The third-party doctrine is properly viewed as such an area.

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Narrowing During Oral Argument in Caulkett

On Tuesday, the Supreme Court heard argument in Bank of America, N.A. v. Caulkett, which substantially concerned the viability of the 1992 precedent Dewsnup v. Timm. The resulting conversation ranged far and wide on the subject of precedent, including reflections about when to overrule and about what I’ve called personal precedent. In this post, I’ll focus on the justices’ extensive ruminations on the subject of “narrowing,” or interpreting a precedent not to apply in a situation where that precedent is best read to apply. (Many of my points stem from my recent article on the subject.)

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SCOTUS Repeaters

Few cases ever reach the Supreme Court, but some get there twice. Recent examples include Bond v. United States (decided 2011 & 2014) and Zivotofsky v. Clinton/Kerry (2012 & pending). The Court may soon add another example: Horne v. Department of Agriculture, decided the first go-round in 2012.

What to make of these “SCOTUS repeaters”? It’s hard to draw strong conclusions from this unusual if regular phenomenon, but a few interesting possibilities present themselves.

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Supreme Court Signals

An interesting theme unites three apparently unrelated cases that I’ve previously blogged about: an obstruction of justice prosecution (Yates), a removal case that poses a riddle of statutory jurisdiction (Dart), and the Sixth Circuit’s recent decision upholding same-sex marriage laws (DeBoer). In short, all three cases implicate the Supreme Court’s ability to send non-precedential signals to lower courts.

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Is Hobby Lobby a Precedent on Jurisdiction?

Erin Morrow Hawley has written a fascinating short piece entitled “The Jurisdictional Question in Hobby Lobby.” Hawley’s basic claim is that all nine Justices in Hobby Lobby made “a serious mistake” in failing to address, much less mention, a jurisdictional problem. This incident calls to mind the Court’s controversial rule against ascribing precedential force to implicit jurisdictional findings.

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Waiver and Forfeiture in the Court

The Supreme Court frequently relies on principles of waiver and forfeiture to limit the scope of its review. But waiver (the voluntarily relinquishment of an argument) and forfeiture (the failure to press an argument) are most naturally at home in traditional litigation that affects only a limited number of parties. In those cases, a court’s main institutional role is to adjudicate the narrow dispute at issue, perhaps without even creating any legal precedent. Think, for instance, of adjudication in a small claims court. By contrast, waiver and forfeiture are in tension with some of the Supreme Court’s most salient institutional goals — namely, to provide correct precedential guidance as to important legal disputes affecting many parties and interests. Several recent cases illustrate how the Court has used waiver and forfeiture while navigating its dual identity as both a traditional adjudicator and a precedential rulemaker.

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Is the Supreme Court Rushing to Judgment?

One of the great things about the Supreme Court is that it adheres to self-imposed deadlines. Each “term” basically starts in early October and ends in late June, before the justices begin their summer recess. This annual rhythm guarantees that cases do not languish undecided, while giving parties and the press some sense of when a result will issue. But we all know that strict, arbitrary deadlines aren’t always desirable. Sometimes, doing a good job means taking a little longer than planned. And, as work piles up and deadlines loom, mistakes are more likely to happen. If the Court is rushing to judgment this month, then the results could fundamentally shape the law.

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