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Wednesday, May 15, 2019

The new abortion laws and judicial departmentalism (Updated)

Whatever I may believe about the new abortion restrictions in Ohio, Alabama, and Georgia as a matter of policy or validity under my normative understanding of the Constitution, the process is playing as it should in a judicial-departmentalism regime:

The political branches enact--and plan to enforce--laws that they believe are valid on their best constitutional understanding. That this understanding conflicts with prevailing judicial doctrine does not matter. In fact, it cannot matter. Judicial doctrine can change only if there are new cases for the courts to hear and decide; new cases arise only if governments enact laws that might be invalid under current doctrine, then are able to argue for reversing existing law or establishing new law in defending those laws in court (whether against a defense in an enforcement action or as defendant in a pre-enforcement Ex Parte Young action). The government then takes its chances. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees.  This is how the system, and the interplay among co-equal branches with interpretive authority, works.

Dahlia Lithwick argues that these new abortion restrictions put Chief Justice Roberts in a bind. Roberts, Lithwick, argues, wants to maintain the facade that judicial decisionmaking is more than raw politics; one way to do so is through incrementalism, rather than overruling the right to reproductive freedom in one fell swoop. The way to do that is to allow lower courts to declare these new laws invalid (as they are under existing doctrine) and enjoin their enforcement, then deny cert (all while deciding other cases involving other laws that allow the Court to limit the right without overruling precedent). The problem is that it takes four (Thomas, Alito, Gorsuch, Kavanaugh) to grant cert in one of these cases, which might force Roberts to forego his desired institutionalism or vote to retain Roe as precedent. Unless he can convince Kavanaugh or Gorsuch to join him in slow-walking things.

This argument works both ways politically. Imagine Hillary Clinton had won, appointed Merrick Garland and Sri Srinivasin to the Court, and now want to overrule Shelby County so DOJ can resume enforcing the pre-clearance requirements of the Voting Rights Act. What would have to happen? DOJ would resume enforcement efforts, creating new litigation in which DOJ argues that Shelby County should be overruled. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees. But there would be no alternative way to set-up the judicial question.

Update: Gerard paints a different scenario, in which Ginsburg, Breyer, Sotomayor, and Kagan rush to grant cert (perhaps after the district court issues the inevitable injunction but before judgment in the 11th Circuit), daring their brethren (literally, given the gender divides on the Court) to eliminate the constitutional right to abortion in a case involving laws that allow for no narrowing construction, provide no exceptions, and are punitive in nature. And all in an election year.

Posted by Howard Wasserman on May 15, 2019 at 06:45 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


I'd vote not to grant cert. It's just one state. Wait until there are a few states passing laws that arguably violate Roe, and decide them all at once. The Court has no obligation to rush to decide every case that is arguably wrongly decided.

Posted by: Douglas Levene | May 17, 2019 3:04:54 AM

Guha --- I think that there's been a tradition that one of the four Justices that voted to grant cert. must "switch" their vote to DIG in order to actually DIG the case. But that's described as a tradition, not a rule. There's more detail at Gely & Solimine, The Supreme Court and the DIG, 2005 Wisc. L. Rev. 1421, 1441-50 (including times when the tradition hasn't been followed, and possible reasons why).

Posted by: Tejas Narechania | May 16, 2019 11:52:55 AM

Gusha: Yes, they could DIG the case. But that would be such a bizarre use of the DIG as to raise the same institutional concerns.

Asher: The judgment in Shelby County binds the current AG only as to Shelby County. That's where, I argue, departmentalism lines up with particularized/non-universal injunctions. You're right it may be too "raw" for the executive to try. But that is a matter of prudence, not constitutional obligation. And this approach to the VRA would be as "raw" as what Alabama is doing right now.

Posted by: Howard Wasserman | May 15, 2019 10:55:56 PM

My advice to Hillary would just be for her to work with Congress to enact a new coverage formula, which would at least address the Court's stated problem in Shelby County, not to start enforcing a law that had been declared unconstitutional by the Supreme Court. That sort of departmentalism seems a little raw to me. Isn't Shelby County v. Holder at least a binding judgment on whoever "Holder's" successor is, i.e., on any subsequent Attorney General that Hillary might have appointed? Would you also recommend--or think it would be okay if she did, I assume this wouldn't be your legal advice for predictive reasons--that she enforce those parts of the Medicaid expansion declared unconstitutional in NFIB, withdraw Medicaid funds from states that didn't expand Medicaid, and hope that the Court change its mind about the constitutionality of that? Again, isn't NFIB v. Sebelius a binding judgment on, at least, any successor of "Sebelius," President Obama's Secretary of HHS? One thing I know for certain is that if the district courts in these cases retained jurisdiction to enforce the Court's injunction or declaratory judgment, Holder and Sebelius's successors would be automatically substituted. I suppose you may well say that without class certification, the judgment only binds those successors with respect to Shelby County and the many plaintiffs in NFIB (which I believe included many states). Whether or not that's technically so, it is, again, too raw a departmentalism for me to say that the executive branch can just turn around after losing a case in the Supreme Court on the constitutionality of some statute against Plaintiff A and enforce just the same statute as to Parties B through Z. There are other ways to get the Court to overrule its precedent than doing this, such as Congress enacting and the executive branch enforcing statutes that are arguably distinguishable from the invalidated one, and then alternatively arguing that the Court's precedent should be overruled.

On "does not matter" and "cannot matter" in your second paragraph, matter to what? Matter for purposes of assessing these actions' legality? What about their propriety, in a political sense? Suppose I believe that Barnette is wrong, that the school-prayer cases are wrong, and that prayer and allegiance-pledging in the public schools would be wonderful, but that I am sane enough to know that the courts are not likely to come around to this view. Now, should I vote, all things being equal, for politicians who promise to enact mandatory pledge and school prayer laws, or, notwithstanding that I like the idea of such laws and believe in their constitutionality, should I think ill of such politicians and their willingness to promote popular disrespect for the courts and jettison the benefits of judicial settlement?

Posted by: Anon | May 15, 2019 10:12:54 PM

Can the Court not simply DIG the case with 5 votes, even if 4 vote to hear it?

Posted by: Guha Krishnamurthi | May 15, 2019 9:59:18 PM

Astonishing simply, I quote from the bill:

By comparison, more than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin's gulags, Cambodian killing fields, and the Rwandan genocide combined.

He who wants,can reach the bill here:



Posted by: El roam | May 15, 2019 8:01:41 PM

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