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Monday, October 03, 2022

Maybe Dobbs is different

During the period between the Dobbs leak and the opinion, I wrestled with the arguments that Dobbs is unique because it overrules precedent to eliminate a recognized individual right, as opposed to reinstating or establishing a new right. I was not sold on the argument because the Court has "eliminated" rights--overruling Lochner and overruling some crim pro stuff. In any event, I was not convinced that the difference matters for the Court's "legitimacy."

But here is a thought that might change my mind. There is an open question whether conduct that was constitutionally protected when performed at T1 can be punished or sanctioned at T3 after precedent changes and that conduct loses its constitutional protection at T2. This can happen in two ways. 1) An existing law,de-zombified, is enforced against a rights-holder; the rights-holder's pre-new-precedent conduct violated the law, so she becomes subject to successful enforcement of the law following the change ; or 2) Following the change, government enacts a new law, imposing civil (not criminal) sanctions and made expressly retroactive, and the law is enforced against a rights-holder's pre-new-precedent conduct. Jonathan Mitchell (the source of S.B. 8 and its imitators) argues that either is permissible. Precedent functions as a judicially imposed non-enforcement policy; when that non-enforcement policy changes because judicial precedent changes, the rights-holder can be liable for conduct that violated the statute.

If Mitchell is right,decisions eliminating a right (Dobbs) are different from one that does not eliminate a right (Brown). The former imposes new consequences on rights-holder for old conduct; the latter does not. Or the difference triggers some forward-looking due process concerns.

I would not frame this as legitimacy. But it implicates an additional layer of constitutional concern going forward.

Posted by Howard Wasserman on October 3, 2022 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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