#FedSoc2021 and Dobbs

Synthesizing three days of debate and discussion.

|

I first attended the Federalist Society Lawyers Convention in 2006 as a 1L. I have now attended sixteen annual meetings. These gatherings serve as a useful litmus test for the current state of the conservative legal movement. After the 2008 presidential election, the assembly felt like a wake. In 2012, after NFIB, there was a sense of betrayal in the air. After the 2016 presidential election, the Mayflower hosted a job fair. In 2020, we should have met in Florida instead of on Zoom.

At the convention, I always try to talk to as many people as possible to gather the wisdom of the crowd. I chat with law students, attorneys in private practice, government attorneys, professors, and anyone else I bump into. If you see me in the grand hallway, I resemble a whirling dervish, meeting and mingling with purpose.

At this conference, the most contentious topic was Dobbs. And there is a wide range of thoughts on this issue. Here, I will try to synthesize three days of debate and discussion on Dobbs. At some points, my own views will seep, in but I will try to keep the big picture in mind. From my perspective, there are four general camps of views. These camps are not distinct, and often overlap. Indeed, most people hold conflicted views.

Camp #1 - Overrule Roe

First, there is the Roe delenda est camp. This group argues, fervently, that the only acceptable decision would be for the Court to overrule Roe. Camp #1 argues, correctly, that Roe has no basis in the Constitution. And Camp #1 contends that rewriting Roe and Casey would simply perpetuate the worst excesses of judicial supremacy from generations ago. Finally, Camp #1 posits that adopting Casey's notion of stare decisis would itself perpetually entangle the Court in politicization.

But Camp #1 has a broader concern: the failure to overrule Roe could have cataclysmic effects on the conservative legal movement. The starting point of this concern is Bostock, which was a wakeup call. Justice Gorsuch's opinion highlighted, and strengthened a schism between traditional originalists and common-good originalists--even though both groups agreed Gorsuch egregiously erred. In 2020, many attorneys wondered what was the point of supporting the Federalist Society if its judges could reach such flawed decisions, under the pirate flag of textualism.

Still, Bostock had a relatively minimal effect on the world. Most circuits had already ruled that Title VII prohibited SOGI discrimination. And, as a practical matter, most employers had already adhered to those policies. But, Camp #1 argues, a decision to reaffirm Roe would be very different. For five decades, the conservative legal movement has germinated from a primary objective: overruling Roe. This single decision has been the locus of countless debates, forums, articles, and briefs. There is such a deep-seated antagonism to Roe. But for Roe, it is not clear the Federalist Society would be what it is today. Imagine if on Earth #2, Justice Kennedy did not change his mind in Casey, and overruled Roe. Or if President Bush picked Edith Jones over David Souter. Would FedSoc have its present-day stature?

If six members of the Court, who arose in this movement, cannot overrule Roe, then the movement will be deemed a failure for Camp #1. And people will decrease their support for the Federalist Society. Students will not be so eager to attend meetings. Lawyers will be less willing to devote their time as volunteers. Non-lawyers will eschew such principles as textualism and originalism, in light of the failure to kill Roe. And future administrations may be less willing to seek FedSoc's guidance for appointments. The insourced process will be outsourced. There are four votes to overrule Chevron, but only three votes to overrule Roe. Ultimately, members of our movement will seek other conduits for change. To paraphrase R.E.M.Dobbs could be the end of FedSoc as we know it. But they do not feel fine.

For Camp #1, the only way to avert this irreparable alteration of our movement is to overrule Roe, root and branch. Nothing short of that outcome would suffice. And overruling Roe would cement the vitality of FedSoc for a generation. The organization would grow and flourish, providing more support for other pillars of conservative legal thought. Dobbs is the fulcrum on which our movement pivots, ever so precariously.

Camp #2 - We'll take what we can get

The second camp is more pragmatic. They would be content for the Court to uphold the fifteen-week ban, without overruling Roe and Casey. Of course, to reach such a ruling, the Court would have to reaffirm Roe and Casey, but employ some legerdemain to rewrite those precedents. For example, the Court could decouple the "undue burden" standard from the viability line. So long as women have a meaningful opportunity to obtain an abortion after learning of their pregnancy, there is no "undue burden." One line I floated would tether the line to when a woman knows, or should know, that she is pregnant. (That number, about 5.5 weeks, would generally track some delta after a missed period, and has remained fairly consistent over the decades).

This perspective still turns on the expansion of substantive due process. Law professors and students who care about the Constitution will be appalled by this reworking of Roe. Those who are less concerned about the law will see a decision allowing the prohibition of 15-week abortions. They'll take what they can get.

But Camp #1 will be profoundly disappointed. The Justices succumbed to the same temptations of judicial supremacy that gave rise to Roe and Casey. More importantly, the Justices will have signaled that they are susceptible to future campaigns to tweak the law to avoid reaching what elites perceive as unpopular results. This outcome would represent a rubicon that cannot be uncrossed.

Camp #3 - Stare Decisis

There is a third camp that is resigned to defeat. They fully expect that a majority of the Court will uphold the Fifth Circuit's ruling, and leave Roe and Casey in place. And this option would be premised on the concept of stare decisis, a latin phrase that means "let the decisions of the Warren/Burger Court stand."

But let's be clear. This notion of stare decisis is the stare decisis defined by the Casey plurality--which was likely drafted by Justice Souter. And, Casey explained, stare decisis must consider how the public perceives the Court. But this theory of precedent is entirely inconsistent with judicial independence. Chief Justice Rehnquist accurately characterized this dilemma in his handdown of Casey. This passage, regrettably does not appear in the published dissent. But it is worth listening to, over and over again. We include the audio in our 100 Cases series.

The joint opinion's insistence on preserving the form, if not the substance of Roe, can just as easily be viewed as a surrender to those who have brought political pressure in favor of that decision. Once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.

The decision to uphold Roe and Casey, in their entirety, would avoid the traphouse of expanding substantive due process. Still, upholding Roe and Casey based on the Gallup-poll version of stare decisis would be tragic. The Court would throw itself into the bottomless pit, from which it could not extract itself. And the cataclysmic consequences Camp #1 fears may soon come to fruition.

Camp #4 - Brett and Amy

There is a fourth camp that focuses almost entirely on the Court's newest members. To overrule Roe, one, or probably both of those Justices would have to cast the deciding votes. This much is in agreement. But within the fourth camp, there is a wide range of views about how to approach Justice Kavanaugh and Barrett.

Let's start with Justice Kavanaugh. There is a strong perception that Justice Kavanaugh worries how the public views the Court. Justice Kavanaugh has long been an astute observer of politics. Indeed, during the S.B. 8 arguments, he opined that it would "be quite difficult to get legislation through Congress" empowering the United States to sue. That point is entirely irrelevant to the legal question, but is essential to Justice Kavanaugh's jurisprudence. If Congress won't act, I will! Justice Kavanaugh is a byproduct of beltway politics, and he cannot remove himself from beltway politics.

Then there is Justice Barrett. Justice Barrett is not a product of the beltway. Professor Barrett took her talents to South Bend. Still, there is a concern that she has quickly fallen into predictable traps. In September, she spoke at the McConnell Center. She made her oft-repeated remarks, which were not recorded, that the Justices were not "political hacks." She also may have said that the Justices were concerned about public perceptions.  And predictably, after Barrett's remarks, there was a blowback in the press, on the right and the left. These remarks do not exude judicial independence; rather, they hew towards judicial dependence. Justice Barrett's trying to correct misperceptions in the public presupposes that she cares what those misperceptions are. She shouldn't. Preach the gospel of originalism. Don't apologize for who you are.

Fast-forward to the Federalist Society Convention. This year's Scalia dinner could have been Barrett's valedictory. She would have received a hero's welcome at a gala named after the Boss. But she was not the speaker. She wasn't even in attendance. Neither was Justice Kavanaugh, who (as best as I can recall) attends the dinner every year. Justices Alito and Gorsuch were present. But Barrett and Kavanaugh were not. Perhaps they both had scheduling conflicts. Or maybe were super busy at work, tweaking Ex Parte Young and Rule 65. But it is also possible their absence was premised on public perceptions. Now, perhaps both Justices know that they are prepared to overrule Roe, and think that attending the Federalist Society convention could result in unfavorable press come June. Or, it is also possible the Justices were unwilling to confront the FedSoc regulars on the precipice of sustaining Roe. Or maybe there is another explanation. But if Kavanaugh and Barrett are, in any way, hesitant to attend the Federalist Society dinner out of fear of public perception, then we are in serious trouble. Justices Kavanaugh and Barrett seem worried about public perception, in ways that Justices Thomas, Alito, and Gorsuch are not.

***

These concerns led to a consistent debate within the corridors of the Mayflower. What, if anything, can be done? The Justices will be perpetually under pressure from the liberal media. Entire institutions exists to shame conservative jurists to support progressive causes. There is not much of a similar force on the right. I am one of the few right-of-center bloggers willing to criticize the right-of-center Justices. A few voices popped up after the S.B. 8 arguments. Still, at the convention many people thanked me, over and over again, for my willingness to criticize Kavanaugh and Barrett. I speak for a silent plurality within our movement. And I'll keep writing.

So what now? I think there are several paths of writing we will likely see.

First, there will be efforts to normalize the environment to overrule Roe. Indeed, Texas has been a natural experiment of what the post-Roe world looks like. Planned Parenthood will become a travel agency, and shepherd women out of state to obtain abortions. The organization can provide child care, cash stipends, and other perks to make the process more seamless. Indeed, in light of 48-hour waiting periods, it may be quicker for some women to take same-day trips out of states than wait for local procedures. SFO and LAX can open clinics in the terminals. If the Justices see that overruling Roe would not be the end of the world, the goal becomes more viable (no pun intended).

Second, there will be efforts to pressure the Justices--both before, and in the wake of oral arguments. I think Camp #1 will raise, with some validity, the existential crisis facing the conservative legal movement. It is hard to predict what would happen if Roe is sustained, but our status quo will not continue. At a minimum, many of the tenets we have long taken for granted will be challenged.

Third, if oral arguments do not go well, there will be efforts to compromise--reach some other middle ground which allows the Mississippi statute to remain, but without overruling Roe on its face. I'm not sure that middle-of-the-road approach will avert the cataclysms. This sort of intellectually bankrupt ruling will show that the Justices are susceptible to pressure, and will eschew the Constitution for convenience. It pains me to say, but the Court would be more intellectually consistent to simply stand by precedent, rather than to rewrite Roe.

Ultimately, I think there is only one viable path forward--and the S.B. 8 arguments convinced me of this path. End the epicycles, rip off the bandaid, and restore abortion to the political process. If the left wants to destroy the Supreme Court, that is their fault, and not ours.