The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last year, Chief Justice Roberts was able to single-handedly control the Court's docket. There were four votes to grant several Second Amendment. But the Chief signaled that he would uphold the gun control legislation. And, according to Joan Biskupic, the Court's conservatives relented. The year before, according to McKay Coppins, Roberts cleared the docket of abortion and religious liberty cases to save Justice Kavanaugh.
This year, Roberts is no longer in charge. There are now five conservatives votes, apart from the Chief. And Roberts's idle threats are not enough to break up a majority. Of course, Roberts can try to pluck the votes of Kavanaugh, and potentially Barrett, but he can no longer unilaterally keep a case off the docket.
Instead, I think he is pursuing a threshold strategy, perhaps aided and abetted by Justice Kagan: limiting, or even rewriting the questions presented. This simple gesture is a final bulwark of moderation. Of course, the Court is in no way bound by what precise questions are granted. But the parties will limit their briefing to those issues. And it is very easy for the Court to say, "We only decide the questions presented." Or more importantly, a dissenting Justice can say, "The Court is deciding a question that was not granted or briefed." (According to Jeff Toobin, Justice Souter's draft Citizens United dissent along these lines caused the Court to re-argue the case). The QP matters. And Roberts is trying to limit the Court by limiting the questions.
Consider three examples from this term involving abortions and guns.
First, in March, the Court granted certiorari in Cameron v. EMW Women's Surgical Center, an abortion case from Kentucky. The Kentucky AG petitioned on two questions:
1. Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.
2. And if so, whether the Court should vacate the judgment below and remand for further consideration in light of June Medical.
But the Court only granted cert on the first question.
CAMERON, ATT'Y GEN. OF KY V. EMW WOMEN'S SURGICAL CENTER, ET AL. The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.
In theory, the Court could have ruled for Kentucky on standing, and then remanded the case for resolution of the merits. Then, the case would have stayed with an unfavorable panel. At the time, I speculated that this limited grant was strategic:
Now, there may be some strategery here. Perhaps the Court will grant one more abortion case next term that will clarify the scope of June Medical. (It surely isn't Dobbs). Thus, the Court could rule for the Kentucky Attorney General, and remand in light of the new abortion precedent. But if the Court does not decide any abortion cases in OT 2021, the Kentucky issue could linger past the next presidential election.
But the Court not did grant the entire petition. Rather, the order list states:
The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.
The Mississippi SG's petition presented three questions:
- Whether all pre-viability prohibitions on elective abortions are unconstitutional?
- Whether the validity of a pre-viability law that protects women's health, the dignity of unborn children, and the integrity of the medical profession and society should be analyzed under Casey's "undue burden" standard of Hellerstedt's balancing of benefits and burdens.
- Whether abortion providers have third-party standing to invalidate a law that protects women's health from the dangers of late-term abortions.
The petition was filed on June 15, 2020. Two weeks later, the Court decided June Medical. That case, of course, expressly left open the issue presented by the second question presented: what is the relationship between Casey and Hellerstedt. And that is precisely the question the Court now declines to resolve. The Chief wouldn't answer that question in June 2020. And now, apparently, the Chief won't answer that question in June 2022. Thirteen months from now, the Court's abortion jurisprudence will likely be just as fractured as it is today. The only issue the Court would decide, in theory at least, if whether "all pre-viability prohibitions on elective abortions are unconstitutional?" I emphasized the word "all." Perhaps the Court will hold that some "pre-viabilty prohibitions" are valid, and then remand to the lower court to decide whether the Mississippi restriction is constitutional. Thus, wasting another three years of litigation while the law remains enjoined.
I see a strong parallel with the third relevant case: NYS Rifle & Pistol Association v. Corlett. I wrote two posts about the limited cert grant in that case. (I won't repeat those arguments here) Here, the Court rewrote, and narrowed the question presented:
Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.
I worried that the Court will simply hold that the Second Amendment protects a right to conceal-carry, and then remand to the lower court to determine the validity of New York's regime. Once again, the restriction remains on the books, and several years are wasted in litigation.
I searched Westlaw for the phrase "The petition for a writ of certiorari is granted limited to." There are only 22 hits between 1981 and 2021. Four of them have appeared since March 2021: Cameron, NYS Rifle, and Dobbs. The fourth case is Thompson v. Clark, a Section 1983 unreasonable seizure case. Before this flurry, the last such limited grant with this phrasing came in Olmstead v. L.C. (1998). The Roberts Court has never used this phrase before. And now it has done so four times in the span of two months. I definitely see a trend here. The Court is rewriting, and limiting cert grants to achieve some sense of restraint.
This Roberts/ Kagan play is smart. The Court can give moral victories to the right, but avoid any realistic change to the status quo. Minimalism strikes again. I remain of the mind that a Court with seven conservative Justices would consistently reach conservative outcomes. Even before Justice Barrett's appointment, I didn't think six would be enough. Seven ought to do it.
One last note on Dobbs. In hindsight, the limited grant in Cameron makes sense. The Court can send the Kentucky case back to the Sixth Circuit with a new abortion precedent in hand. But in March, was it a certainty that Dobbs would be granted? Perhaps there was a dissent from denial pending that ultimately persuaded one more Justice to grant. But it was also possible that Cameron could have been granted, but Dobbs would be denied. In that case, the Kentucky law would have been stuck in purgatory for a few years. This dynamic reminds me of NYS Rifle & Pistol I. At the time, a finding of mootness wasn't too bad because there were so many other potential vehicles on the docket. But one month later, Roberts flipped the script and forced the denial of all gun cases. It was risky to grant a limited cert grant in Cameron when the fate of Dobbs was unclear. Hindsight is always 20/20.