The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On June 15, 2020, a petition for certiorari was filed in Dobbs v. Jackson Women's Health Organization. Two weeks later, the Court decided June Medical. Over the past 9 months (three trimesters if you will), the circuits have split about whether June Medical overruled portions of Whole Woman's Health. The Court first distributed Dobbs for the 9/29/20 conference. It was then rescheduled for 10/9/20. And rescheduled again for 10/16/20. And rescheduled again for 10/30/20–three days after Justice Barrett was confirmed. Finally the petition was distributed for the 1/8/21 conference. In total, the petition was considered at eight conferences.
It's possible the Court will ultimately grant certiorari at the end of the term. Or maybe there is another vehicle in the waiting that can be granted; Dobbs can be held. At this juncture, there do not appear to be four votes to grant. One or more justices may be writing a dissent from denial of cert. What is going on here?
First, I am confident there are three votes to grant: Thomas, Alito, and Gorsuch. They were gung ho in June Medical. But three does not make four.
Second, the Chief Justice seems to be retreating from his position in June Medical. He reaffirmed his conclusion that Whole Woman's Health was wrongly decided, but Louisiana's law was too similar to Texas's law. Roberts was willing to make that point when he was the 5th vote. But now, he would be the (ostensible) 6th vote.
Third, Justice Kavanaugh also seemed to agree with Thomas/Alito/Gorsuch in June Medical. What is the holdup?
Fourth, we have Justice Barrett. In her brief tenure, she has trended towards the Roberts/Kavanaugh centrist wing of the Court. She didn't vote to take up the Pennsylvania election case. She sided with Justice Kavanaugh in South Bay II. We only have a few glimpses, but the portrait of Justice Barrett is beginning to take shape.
If Thomas, Alito, and Gorsuch dissent from the denial of cert in Dobbs, we know that Roberts, Kavanaugh, and Barrett each declined to grant review.
Update: I misread the docket in my earlier post. This case has not been relisted 16 times.