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Thursday, December 01, 2022

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.

Cross-posted on Re's Judicata

Posted by Richard M. Re on December 1, 2022 at 07:08 PM | Permalink


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Posted by: Guider Man | Mar 20, 2023 1:33:36 PM

They must be emotionally and physically strong, and able to be unaffected by what they see, whether in the past or in the future.

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Posted by: SexyPG888 | Dec 9, 2022 5:03:25 AM

Just as Slavery is antithetical to securing and protecting our inherent Right to Liberty, abortion is antithetical to securing and protecting our inherent Right to Life.

Due Process is binding in both State and Federal Law.

“751 it is nonetheless possible to identify its core goals and requirements. First, “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”

“Although the Court has found prudential standing to be present in several cases,3 it has shown a reluctance to allow litigants to assert the rights of third parties because those parties may not need or wish to assert those rights, and courts prefer to avoid unnecessary decisions on constitutional issues.4 Furthermore, a litigant may be a less effective advocate for the third parties’ rights than the third parties themselves.5”

“Barrows v. Jackson illustrates the prudential application of ‘third-party standing’.”

“Thus, although a litigant may not generally challenge government action on the grounds that it infringes another’s rights,11 it may do so in certain narrowly defined contexts. As this section has discussed, standing may be found when a litigant challenges a statute as unconstitutionally overbroad on its face in violation of the First Amendment12 or when the litigant suffers some injury and third parties whose rights the litigant relies upon face an obstacle to protecting their own interests.13 The Supreme Court has also permitted criminal defendants to challenge their convictions by asserting the rights of persons not before the Court whose rights would be negatively affected by enforcement of the law in question.14 These circumstances are relevant to a prudential standing inquiry as well as to constitutional standing.


Posted by: N.D. | Dec 6, 2022 9:52:18 AM

Asher: Many thanks for these thoughts. To my mind, your “much simpler” account is still pretty complicated! And it also largely lines up with points I tried to anticipate in my post. Let me add a few remarks.

First, you point to stare decisis, but doesn’t that require a fairly permissive view, as my post suggested? In June Medical, for instance, conservative justices weren’t too worried about honoring 3PS precedent. So, why the sudden change of heart in Dobbs—particularly since Dobbs was of course willing to throw over a bunch of other precedent?

Second, you press waiver, but what about my point in the post: Given both Court precedent and what these justices have written elsewhere, why should a state defendant’s waiver—really, a forfeiture here since raised in the petition—deprive the rights-holders of the ability to protect their own asserted rights?

Finally, you end by ascribing a more rigid or radical view to me than the one I am putting forward. As the post says, I think it’s possible that the Court could exercise jurisdiction in Dobbs. But to do so, the Court (especially Thomas) would have to assert a lot of discretion, and in a way that seems at odds with the justices’ past writings.

Posted by: Richard | Dec 5, 2022 11:42:07 AM

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Posted by: Lauren Waters | Dec 5, 2022 2:57:09 AM

“third-party standing was an Article III question”

The Supreme Court does not have the authority to create new law; The Supreme Court does have the authority to decide whether a law is constitutional.

Certainly, when it comes to protecting and securing our inherent Right to Life, all human persons have standing, and thus a right to privacy cannot trump our inherent Right to have our life secured and protected.

Dobbs was “wrong on the Day it was decided”, because a Right to Privacy does not include a Right to destroy innocent human life, and is thus unconstitutional.

Posted by: N.D. | Dec 4, 2022 10:10:09 AM

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Posted by: PGSLOT เว็บตรง | Dec 4, 2022 2:14:05 AM

I think Asher is on the right track. I grant my betters have a better cause to discuss this more technical matter. BUt, I think his approach sounds correct.

It might simply be irrelevant, perhaps, but it also brings to mind the Georgia state opinion that received some attention regarding if Roe v. Wade was constitutional law or something before Dobbs was handed down. I think that turns on how state law handles such questions. I think general comments can go too far there.

I do wonder if Justice Kennedy's "wrong on the day it was decided" language in Lawrence v. Texas would change anything in those cases. Cf. Justice Souter's Harvard speech and his more "product of their times" discussion on Plessy v. Brown.

Posted by: Joe | Dec 3, 2022 2:02:35 PM

Every argument put forth to defend the act of the destruction of a beloved innocent son or daughter residing in their mother’s womb, can only be a non se·qui·tur argument when considering the fact that it is not possible for human persons to conceive a son or daughter, who is not, in essence, on every point of Time and Space In God’s Created Universe, a human person. You are you, and I am I, from the moment of our conception, and if it is no longer true, in reality, that our Constitution serves to secure and protect our inherent Right to Life, the securing and protecting upon which our inherent Right to Liberty and The Pursuit of Happiness depends, then “to hell” with our Constitution and woe to us.

We can know through both Faith and reason, and The Law Of Noncontradiction, that to even suggest that it is possible for a human being to not be, in essence, a human person, is a lie from the start.

All human persons, from the moment of conception, exist in relationship, first and foremost as beloved sons and daughters, and the fact that some persons, like those that follow the atheist materialist overpopulation alarmist globalist agenda, see this to be a burden and not a Blessing, cannot change the fact that every beloved son or daughter of a human person, possessing equal Human Dignity, is therefore equal before the Law.

Who can deny that the atheist materialist and their atheist materialistic agenda have not been with us since The Beginning Of Time? Who can deny that Slavery, Abortion, And The ReOrdering Of Human Persons According To Sexual Desire/Inclination/Orientation, do not serve to deny the inherent Dignity of the human person, as a beloved son or daughter, in order to condone the engaging in or affirmation of acts, that regardless of the actors or the actors desires, deny the inherent Dignity of our Beloved?

Any act, including any sexual act, that does not respect the inherent Dignity of a beloved son or daughter, is not, and can never be, an act of authentic Life-affirming and Life-sustaining Love.

Christ’s Sacrifice On The Cross will lead us to Salvation, but we must desire forgiveness for our sins, and accept Salvational Love, God’s Gift Of Grace And Mercy; believe in The Power And The Glory Of Salvation Love, and rejoice in the fact that No Greater Love Is There Than This, To Desire Salvation For One’s Beloved.
“Hail The Cross, Our Only Hope.”

Posted by: N.D. | Dec 2, 2022 2:04:00 PM


Posted by: stella jones | Dec 2, 2022 8:03:03 AM

I think this is much simpler than you make it out to be. A few terms ago in June Medical, the state conditionally cross-petitioned for cert on whether third-party standing was waivable, claiming the Court had never decided whether third-party standing was an Article III question. The Court granted the cross-petition. The plurality opinion said third-party standing was prudential and waivable and had been waived, acknowledging they could excuse a mere forfeiture. The Chief Justice said he agreed with everything the plurality said on this score in a footnote. Justice Alito's dissent didn't contest third-party standing was waivable but claimed it was merely forfeited; only Justices Gorsuch and Thomas wrote (on differing grounds, with Gorsuch only claiming third-party standing was "structural") that waivers of third-party standing could be excused. To be sure, most members of the future Dobbs majority believed the June Medical majority got the content of third-party standing wrong (Kavanaugh didn't join either dissent on third-party standing), but only Gorsuch and Thomas doubted its waivability.

Turning then to Dobbs, Mississippi sought cert on several QPs, including third-party standing, and their petition led on that QP with an argument that it didn't matter if they'd waived third-party standing below (at this time, June Medical hadn't yet been decided), a word they use to describe their own conduct, at least arguendo, about a dozen times. After June Medical came out, they abandoned the third-party standing QP entirely in their reply, unsurprisingly, since the petition essentially conceded third-party standing was waived below and the Court had just held it was waivable.

The answers to your questions, then, are: (1) the Dobbs majority, sans Thomas, didn't think a lack of third-party standing was jurisdictional; (2) even Thomas at least had to grant that a supermajority of the Court had held third-party standing wasn't jurisdictional; (3) the Dobbs majority wasn't in a position to excuse a forfeiture of third-party standing after Mississippi essentially conceded waiver and then abandoned their request for review of third-party standing, leaving the Justices who believed Mississippi was right on the third-party standing merits to, in order to reach those merits, review a concededly waived issue that the Court had recently held inexcusably waivable (and up to seven Justices agree is waivable and up to eight agree isn't jurisdictional), on which Mississippi abandoned its request for cert, and then, sua sponte, overrule numerous precedents of the Court and create new third-party standing doctrine regarding a right that those Justices don't even believe exists.

I think your suggestion that the Justices who didn't try such a wild stunt were doing something objectionable illustrates the problems with your personal precedent project. There is nothing objectionable about failing to push one's personal supermajority-rejected view (the view that third-party standing is jurisdictional or even unwaivable) to the point of voting to overrule multiple layers of precedent on a waived issue the Court denied cert on after the petitioner abandoned its request for cert on that question. Rather, following precedent from which one dissented in that extreme kind of scenario is just the bare minimum of sanity.

Posted by: Asher Steinberg | Dec 2, 2022 12:29:01 AM

It is not so clear here. The Jackson clinic, has shown injury (clearly so, already in the Fifth circuit). As such, it has standing. I quote from the ruling (in the Fifth circuit):

Finally, the State contends that the district court overreached in fashioning the permanent injunctive relief it granted to the Clinic. It argues that (1) the Clinic lacks standing to bring a facial challenge because the Clinic does not perform abortions after 16 weeks LMP and (2) the relief awarded by the district court is not narrowly tailored to the Clinic’s alleged injury.

The State conflates standing with relief. A plaintiff must show standing “for each claim he seeks to press” and “each form of relief sought.”41 The Clinic has done so, as it pursued its constitutional claims on behalf of its patients, and its requested form of relief (permanent injunction of the Act) redressed the Act’s pre-viability ban on abortions, which is an injury traceable to the State. This challenge to the scope of relief is better addressed in terms of the court’s exercise of discretion in tailoring the remedy, not in terms of standing.

End of quotation:

Anyway, in the Supreme court, the Justices, use the word "amici" of the clinic it seems (for quoting their arguments). However, standing here, seems pretty clear.

Whatever, the substantial arguments of the court is the real one here. Not that.

Lack of jurisdiction, is really exaggerated and irrelevant it seems.


P.S: here to the ruling quoted:


Posted by: El Roam | Dec 1, 2022 9:24:29 PM

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