#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.

Comments

[Cal Cetín]

"restore abortion to the political process"

This is what passes for right-wing extremism nowadays? Sad!

Would you at least acknowledge John Finnis' argument that the state cannot constitutionally legalize abortion because it violates the rights of the unborn?

https://www.firstthings.com/article/2021/04/abortion-is-unconstitutional

Stephen Douglas didn't care whether slavery was voted up or voted down, so long as the wishes of the (white) majority were respected.

Under Blackman's approach, Douglas's view would be considered the uttermost limit to which abolitionism could safely go - the most extreme antislavery position possible.

And what kind of credit will Blackman receive in return from the abortion-fanciers? None at all.

Not to put too fine a point on it, but if this kind of attitude represents "conservatism," one has to wonder whether "conservatism" is any good at all.

[Intelligent Mr Toad]

Legalizing abortion does not violate the rights of the unborn. There is no right to have one's life sustained by the internal activities of another person, by sharing the contents of her bloodstream and the products of her metabolism, and by occupying the insides of her body. Those are not rights, but special privileges, which she is entitled to grant, or not, and in cases where she does decide to grant those privileges, she is also entitled to decide for how long to grant them, and, to change her mind about that, if the granting becomes too onerous for her. And if she decides to grant you those rights for a few weeks or a few months, but not for as long as you would like (not 38 weeks), then your response should be the same as it would be to anyone who gives you a gift, but not as big a gift as you were hoping for: "Thank you for what you have given to me. A few weeks or a few months of life-support inside your body is better than zero weeks or months of life-support inside your body, and I'm grateful for them. Bye-bye!"

[Krayt]

I agree. However, government loves to hold people responsible for consequences of risky behavior. Why should this be any different?

[Queen Amalthea]

A grown man sitting around worried about microscopic embryos is a weird, weird man.

[Cal Cetín]

Who is weirder - the weirdo or the guy who stalks the weirdo through the comments?

[Stephen Lathrop]

But this theory of precedent is entirely inconsistent with judicial independence.

Yup, for certain expansive values of, "judicial independence."

New England transcendentalist Margaret Fuller was fond of declaiming, "I accept the universe."

To which Thomas Carlyle responded, "Gad, she'd better!"

Josh wants the Federalist Society to reject Carlyle.

[Cal Cetín]

I hope you reject Carlyle, too. He supported slavery.

https://glasgowmuseumsslavery.co.uk/2020/11/18/thomas-carlyle-historian-writer-racist/

Margaret, Fuller, in contrast, did not accept that particular part of the universe.

https://plato.stanford.edu/entries/fuller-margaret/#PhilPoli

[Doug Heffernan]

"If you see me in the grand hallway, I resemble a whirling dervish"

For the life of me, I just can't imagine the blackman kid spinning very fast, causing his clothing to fan out in a circle. Although he did display some vigor while attacking multiple slices of pizza during his zoom classes during the past year.

In any case, god help everyone else in the grand hallway. It seems that it might be something like having to deal with a roving reporter from TMZ.

[Sidney r finkel]

Prof. Blackman does a great service with this post, although probably not the great service he thinks he is doing. He probably thinks he is setting out the logical legal argument for over-ruling Roe. Instead what he is doing is setting out the political biases that he and his fellow Federalists contain, and that is a good thing. It lets everyone know unequivocally where he and his fellows stand.

Consider this from the post.

"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)."

While I would disagree with most of Prof. Blackman's position, he is an intelligent and articulate legal scholar. But he is not a gynecologist or an expert on women's reproduction processes. The statement is BS, and is just a self serving comment by a person who is not qualified to make that conclusion. Argue law Professor, not medicine.

Then there is this, his lament over lack of attendance by some Justices at the Federalist Society dinner. Really!! Just how much confidence should anyone have in a judicial system where the Supreme Justices of the land display their obvious biases by doing something like attending a partisan political gathering where partinsan political speech making takes place. Justices, regardless of your judicial philosophy, stay home.

But the real problem with the post is the lament that the Justices put forth by a blatant politican body, the Federalists, may not be toeing the party line. This lament puts the political biases of the legal profession who make up the Federalists and folks akin to Prof. Blacman front and center. They don't want justice, they want a judicial system that affirms their political party and their political positions. If they succeed the judicial system of the United States will have failed.

[Doug Heffernan]

I also didn't go to gynecologist college, and no next to nothing about reproduction processes or any lady parts in general.

But I do think that the smercommish guy made an interesting point this morning; that medical advances will shape abortion law.

The smercommish guy suggested this after reporting about the recent guinness book record-breaking premature birth in alabama at 21 weeks, 1 day -- nearly 19 weeks early.

I don't know if the guinness book people have been keeping close track of this sort of thing, but I'm pretty sure that advances in medical technology since the 1970s probably should alter our understanding of viability.

https://www.cnn.com/videos/politics/2021/11/13/smerconish-will-medical-advances-shape-abortion-law.cnn

[SimonP]

In the original decision, "viability" was just a rough way to sketch out when state's interests in a fetus could (somehow) outweigh the mother's interests in exercising autonomy over her own reproductive freedom. It was a way of rationalizing a kind of political balance the Court was trying to strike, but not really a logical or coherent way about thinking about the underlying constitutional question.

Put another way, if you want to move the technical point of "viability" up, then you should think about what kind of burden the state should bear for the trouble it puts the mother through. If a woman can be forced to continue a pregnancy after the point of "viability," but what we mean by "viability" is, "the point at which a technically healthy fetus, if born, would have a chance of survival (though perhaps developmentally harmed or permanently disabled), given access to top-notch intensive medical care," then we really need to state to step up in the pre- and post-natal care department. A woman forced to continue a pregnancy at that point by the state should not also be forced to bear the expenses of childbirth/rearing she otherwise might have been able to avoid.

Never mind that a lot of these "post-viability" abortions are health-related - e.g., the mother has an urgent medical problem or the fetus is discovered to lack a brain, etc. We'd also be able to avoid a lot of these "later pregnancy" abortions if states weren't so intent about adding hurdles and costs to getting abortions, and limiting their availability as much as possible. If abortion were easy to access, a lot of these later abortions that conservatives find so odious would be avoided.

[Cal Cetín]

"A woman forced to continue a pregnancy at that point by the state should not also be forced to bear the expenses of childbirth/rearing she otherwise might have been able to avoid."

So...ought we to have some kind of government program to aid the poor?

[SimonP]

More than we have, and not just the poor. In principle, the government should be compelled to compensate all women for all pregnancies it forces them to bear to term, and then for the financial consequences from then on.

[Cal Cetín]

Hmm...well, for other reasons I may be open to a bit more social-services spending, that is, if inflation eats up the value of what they're paying now.

That assumes of course that there's enough money to spend more. A big assumption.

[SimonP]

If we're trying to cut on costs, we can certainly save a lot on social welfare spending by helping women get the contraceptive care they need and, when necessary, the abortions they seek.

I consider the matter akin to a "taking." If the government can't take your property without compensation, it shouldn't be able to force you to do anything with your body without compensation. Complaining that there just isn't the cash isn't any woman's problem. Don't like it, don't use the coercive power of the state.

[SimonP]

It's distasteful in the extreme to read a post where a man casually speculates on the best way to regulate women's bodies based on a half-baked understanding of pregnancy and a near-total ignorance of the circumstances in which women choose to abort (or the legal, social, and economic frameworks that can make it challenging for a woman to obtain an abortion on demand).

But the proposed "5.5 week" line also seems to have no constitutional basis whatsoever, notwithstanding that being his chief complaint about Roe itself. What, exactly, from a constitutional perspective, does constructive notice of a pregnancy have to do with whether a woman has the constitutional right to terminate it? Josh is just engaging in exactly the same kind of political balancing that the justices in Roe did, except in an echo chamber where his preconceived notions about pregnancy being some kind of "punishment" for sex are taken for granted.

I also tend to agree that this hyperventilating concern over the Federalist Society's relevance after a failure to overturn Roe reveals more than Josh intends it to. If real-life judges and justices, faced with the actual consequences of their holdings, conclude that dramatic breaks from precedent cannot, in the end, be undertaken, then that shows how wildly out of touch the members of the Federalist Society must be.

[Cal Cetín]

"They don't want justice, they want a judicial system that affirms their political party and their political positions. If they succeed the judicial system of the United States will have failed."

That would depend on which "they" you're referring to. Here's then-candidate Joe Biden in an interview with the New York Times editorial board in January 2020:

"Nick Fox: I was kind of curious what kind of person? What are you looking for in the Supreme Court?

"[Joe Biden replies:] They have to have an expansive view of the Constitution. Recognize the right to privacy, unenumerated rights that exist in the Constitution. Not the Federalist Society view that if it’s not listed, it doesn’t exist. And they have to be, they acknowledge the unenumerated rights and a right to privacy in the Constitution, and the “penumbra” [laws] and the Ninth Amendment, then in fact that means I know they will in fact support Roe v. Wade. They’ll support a woman’s right to choose and a whole range of other things that relate to individual personal rights. That is critical."

https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html

[not guilty]

Abortion rights supporters typically acknowledge that the right to choose depends on unenumerated rights of privacy and personal autonomy. What text of the Constitution do you claim recognizes an embryo or fetus as embued with its own constitutional rights?

[Cal Cetín]

In this particular subthread, I'm responding to finkel's failure to recognize that the contingency he fears - politicization of the judiciary - is already close to transpiring, but not because of the Federalist Society. finkel's comment:

"They don't want justice, they want a judicial system that affirms their political party and their political positions. If they succeed the judicial system of the United States will have failed."

I showed that we've already got a President committed to a judicial system affirming his political party and political positions. He's closer to success than the Federalist Society.

[not guilty]

You dodged my question. Elsewhere in this comment thread you refer to the alleged ¨constitutional rights of the unborn¨. What, if anything, is the textual basis for your claim?

[Cal Cetín]

If you want to pursue that question, try another subthread.

[Cal Cetín]

Or you could try this link:

https://reason.com/volokh/2021/11/13/fedsoc2021-and-dobbs/?comments=true#comment-9208118

[not guilty]

Is your vehicle also a dodge?

[Cal Cetín]

Why do you disagree with John Finnis' arguments? What specific parts of his article do you find unconvincing?

[not guilty]

Who?

[Cal Cetín]

Link didn't work? Try this one:

https://reason.com/volokh/2021/11/13/fedsoc2021-and-dobbs/?comments=true#comment-9208290

[Cal Cetín]

Further information about John Finnis is found at the Web site of the University of Oxford's Faculty of Law, where he is an emeritus professor.

https://www.law.ox.ac.uk/people/john-finnis

[not guilty]

The Finnis article is a lengthy exercise in question begging. An embryo/fetus should be recognized as a person for Fourteenth Amendment purposes; ergo, it is a person. No concern whatsoever for the personal autonomy of the pregnant woman.

Some matters are simply none of the government´s freaking business. The reasoning of Roe v. Wade is undoubtedly result oriented, but it is in line with substantive due process antecedents. Just a year prior to Roe Justice Brennan wrote, ¨If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.¨ Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

[Cal Cetín]

Perhaps I read a different article than you did.

"Just a year prior to Roe Justice Brennan wrote"

This is certainly an astonishing coincidence, that a justice who supported abortion rights inserted such helpful language into an opinion a year before Roe was decided. What are the odds?

[not guilty]

A statute prohibiting abortion is just as destructive of a pregnant woman´s liberty as would be a statute mandating that she abort. Think of the People´s Republic of China a few years ago and its one child policy.

[Cal Cetín]

"A statute prohibiting abortion is just as destructive of a pregnant woman´s liberty as would be a statute mandating that she abort."

That's certainly a very interesting, and familiar, argument. But it presumes abortion is morally neutral in comparison with live birth, a proposition you haven't established.

[not guilty]

We are talking about what power a state government should be able to exercise. The burden of persuasion should rest upon the proponent of state action.

I oppose restrictions on pre-viability abortion are invalid for the same reasons I believe Buck v. Bell, 274 U.S. 200 (1927), was wrongly decided.

Do you agree with Justice Holmes that the Commonwealth of Virginia was rightly empowered to make reproductive choices for Carrie Buck?

[Ridgeway]

@Cal

Just wanted to let you know I enjoy (generally speaking) reading your posts.

However, as a right-wing Catholic, I will disagree with the argument that the 14th Amdt prohibits abortion. It is a more complicated argument than I can write now, but the gist is that it proves waaaay too much.

If I get a chance, I'll write it out more fully.

[Cal Cetín]

"Do you agree with Justice Holmes that the Commonwealth of Virginia was rightly empowered to make reproductive choices for Carrie Buck?"

No, because I don't view things through your frame. You talk in terms of "reproductive choices," putting childbirth, abortion and sterilization in the same basket.

Do you think it's all right to violate the bodily integrity of Carrie Buck, the way abortionists, with your sanction, violate the bodily integrity of the unborn?

"The burden of persuasion should rest upon the proponent of state action."

Anyone who wants to completely remove legal protection from a human being or class of human beings bears the burden of persuasion.

[not guilty]

You are evidently comfortable with a more powerful and intrusive government than I am.

If you had a relative or close friend faced with an unwanted pregnancy, who came to you seeking advice on whether she should carry to term, would you say to her, ¨I´m sorry, but you are not competent to make that decision, and I am not qualified to advise you. Go ask the governor and do whatever he directs¨?

Perhaps you are comfortable with the likes of Andrew Cuomo making intimate personal decisions for half of the population. I am not.

[Cal Cetín]

Arbitrary government, where the rulers for their own reasons decide to withdraw legal protection from whole categories of human beings at their discretion - whether it be Jews, black lynching victims or unborn human beings subject to abortion - such a government is evil.

I'd help people with problem pregnancies. If "I can't raise a child right now," I'd check what there was by way of adoption.

[Queen Amalthea]

Cal thinks blacks and Jews are on the same level as microscopic embryos. Checks out.

[not guilty]

So you are copacetic with government making intimate personal decisions for its citizenry, so long as they are decisions you agree with?

[Cal Cetín]

So you are copacetic with the government arbitrarily removing legal protection from innocent human beings?

[Queen Amalthea]

Cal is fighting for their rights!

https://www.youtube.com/watch?v=BsaEqwfoCB0

[Sidney r finkel]

You need to recognize that appointing federal judges and Justices is not the sole perogative of the President. The appointments must be confirmed by the Senate.

So if you will examine the Senate during the Obama years (Justice Garland, anyone) and the Senate during the Trump years I think reality would cause you to retract your last statement. Oh, and add Lyin Lyndsey Graham to the mix and I think you see where I am coming from.

[Cal Cetín]

I'm happy to say that, on second thought, Biden is not as close to success as I had supposed. Thank you for the confidence boost.

As to Garland, don't you think he's serving his country better fighting seditionists and protecting school-board members in his role as Attorney General, than he would have done as a Justice?

[David Nieporent]

Instead what he is doing is setting out the political biases that he and his fellow Federalists contain, and that is a good thing. It lets everyone know unequivocally where he and his fellows stand.

His post is indeed revealing, but of his own thoughts. Absolutely nobody elected Prof. Blackman to speak for the Federalist Society.

[Intelligent Mr Toad]

Now THAT is a scary image: Josh Blackman practicing gynecology. Gotta run to the bathroom after visualizing that.

[Jaypd]

"outraged idiot claiming to be professor bothers dozens!" Should be the headline

[bernard11]

All that speculation about who did or didn't attend the dinner suggests the fall of the Soviet Union deprived Josh of a wonderful career as a Kremlinologist.

[Cal Cetín]

I warned the professor that his morally-neutral, and morally bankrupt stance on abortion wouldn't get him any credit with the abortion crowd.

And I right, or am I right?

He got the same amount of grief as if he'd boldly stood out in defense of the constitutional rights of the unborn. In fact, he got *more* grief for his speculations about which weeks abortions should be legal in.

[not guilty]

The supposed ¨constitutional rights of the unborn¨ have never been part of abortion jurisprudence. The competing interests are the privacy and personal autonomy rights of the pregnant woman -- who is undoubtedly a person for Fourteenth Amendment purposes -- compared to the state governmental interest in fetal life. Viability is the point at which the latter outweighs the former (subject to an exception for maternal health). An embryo or fetus has never been recognized as a person having constitutional rights of its own.

[Cal Cetín]

That's the same level of reasoning as "the Bible is true because it says so in the Bible."

Of course abortion jurisprudence is pro-abortion, that's the problem.

[not guilty]

Justice Robert Jackson observed that SCOTUS is not final because it is infallible; it is infallible because it is final. I am merely being descriptive.

[Cal Cetín]

If you want to be picky, Jackson made this remark in a concurrence representing his own views. He was not speaking on behalf of the Supreme Court. So by your own standards his statement is not law.

[not guilty]

It is, however, a clever and pithy pronouncement of judicial supremacy.

[Cal Cetín]

I have a better one, from Stephen Douglas in 1858.

"[Abraham Lincoln] makes war on the decision of the Supreme Court, in the case known as the Dred Scott case. I wish to say to you, fellow-citizens, that I have no war to make on that decision, or any other ever rendered by the Supreme Court. I am content to take that decision as it stands delivered by the highest judicial tribunal on earth, a tribunal established by the Constitution of the United States for that purpose, and hence that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not. Hence I do not choose to go into an argument to prove, before this audience, whether or not Chief Justice Taney understood the law better than Abraham Lincoln. (Laughter.)"

https://home.nps.gov/liho/learn/historyculture/debate3.htm

[not guilty]

Dred Scott was a textualist (albeit result oriented) decision. It took a bloody civil war and a constitutional amendment to overcome it.

[Cal Cetín]

There wouldn't have been a Civil War if the country had accepted Stephen Douglas' (and your) wisdom that, upon being handed down, "that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not."

[Cal Cetín]

There wouldn't have been a Civil War if the country had accepted Stephen Douglas' (and your) wisdom that, upon being handed down, "that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not."

[Queen Amalthea]

Lol, he's so excited about his cells he posted twice!

Gotta save those cells! I am the voice for the voiceless!

[Brett Bellmore]

Oh, BS. While the part about the fugitive slave act being enforceable was arguably textual, that whole business about blacks not being able to be citizens was entirely atextual, and heavily contradicted by founding era history. There was plenty of evidence of free blacks being treated as citizens in some states at the time.

[Intelligent Mr Toad]

Even Antonin Scalia didn't believe in constitutional rights for the unborn. He was pretty outspoken about this.

[tkamenick]

"The supposed ¨constitutional rights of the unborn¨ have never been part of abortion jurisprudence. "

Which is everything wrong with abortion jurisprudence. Literally dehumanizing the victims of abortion. Just how slavery was justified.

[Sarcastr0]

Again, if you thought 'the unborn' was a full person, you'd be for massively more spending on pregnancy care, and also for going after the pregnant woman not just the doctor.

But that's not the main pro life position.

So this slavery murder rhetoric is just that - sophistry, not an argument.

[David Nieporent]

That's not how slavery was justified. While obviously pro-slavery people contended that blacks were inferior, they did not claim that they weren't human. Hence the 3/5ths 'compromise.' Hence slave codes, which were detailed statutes regulating what slaves were allowed to do, and prescribing punishments for slaves who violated those laws. (Nobody passed laws saying that dogs or horses couldn't own guns or assemble or travel.)

[not guilty]

The better analogy to slavery is that female slaves were deprived of free choice regarding sex and reproduction.

[Rev. Arthur L. Kirkland]

I hope anyone considering a Federalist Society member for a faculty position at a strong, reason-based, mainstream law school reads this post and the comments before doing something foolish.

Let the clingers teach the students enrolled at fourth-tier southern schools and superstition-laced backwater institutions. Why should our good faculties emulate those of the weakest schools by hiring a bunch of old-timey, right-wing law professors?

[Cal Cetín]

So, membership in the Federalist Society should be like membership in the Communist Party?

Wait, I presume too much - how do I know you would keep communists off the faculty of strong mainstream schools.

Would you? I'm genuinely curious.

[Rev. Arthur L. Kirkland]

I sense having roughly as many Federalist Society members as communists on a faculty could be reasonable.

If one conclude that obsolete, unattractive thinking deserves a seat at the table.

I suspect it does.

(Fourth-tier and unranked schools, of course, are welcome to continue to field faculties dominated by conservatives. Lousy schools have rights, too.)

[Cal Cetín]

"I sense having roughly as many Federalist Society members as communists on a faculty could be reasonable."

Meaning zero, based on what you advocate for Federalist Society members?

Let me ask for a few details of implementing your policy, based on the Cold War experience with the radical left:

What should be done with people who haven't formally joined the Federalist Society, but associate with the Society and its members (FedSocsymps)?

What about people who deny belonging to the Federalist Society but in many areas follow the Society's official line?

What about people who may not be members of the Federalist Society but refuse to disavow membership of the society under oath, citing their so-called principles? Can a fully modern law school tolerate such harmful principles?

Without such safeguards, the Society's fellow-travellers may insidiously infiltrate our top schools.

[Jason Cavanaugh]

"One line I floated would tether the line to when a woman knows, or should know, that she is pregnant."

Please Josh....STFU. You barely "know or should know" about the law. Neither you nor anyone with a penis gets to decide when a woman "knows, or should know" anything about her body.

"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."

At least you're finally somewhat acknowledging that you're a partisan hack and a Professor of nothing.

[Jimmy the Dane]

Good men no longer have the option of "do nothing" and soon the time will come where we all must "do something"....

[Queen Amalthea]

Jimmy loves the embryos too! This is too much.

[JasonT20]

Justice Kavanaugh is a byproduct of beltway politics, and he cannot remove himself from beltway politics.

Nice of Prof. Blackman to explain why Kavanaugh should never have been on the federal bench at all, let alone on the Supreme Court.

Aren't judges supposed to not be politicians in robes?

[Cal Cetín]

I'm afraid you're a bit late to the party on this one.

I'm not just saying "what about Earl Warren," I'm saying "what about John Marshall," "what about Salmon Chase," or back to the beginning, "what about John Jay".

[JasonT20]

I made this comment because of how often conservatives complain about liberal judges being political, using phrases like "politicians in robes" and "legislating from the bench" and "judicial activism". If Prof. Blackman viewed Kavanaugh as being a creature of the beltway before his nomination to the Supreme Court, then surely he would have opposed that nomination, right? Or is it that he thinks that when conservative judges are political, it is just the price to pay to have conservative judges? I mean, he basically explains that what he thinks the Federalist Society was for was to develop and get appointed judges that have a conservative legal political philosophy.

[Cal Cetín]

I, too, find the political Punch-and-Judy show morbidly fascinating, but the question with Kavanaugh is who would have been nominated if he were defeated?

I personally wouldn't have trusted Trump to find a suitable replacement - he might have found someone worse.

Maybe you trust Trump more than I do?

[JasonT20]

Uh, if Kavanaugh was defeated for being too political, what makes you think someone "worse" would have been confirmed in his place? That makes no sense.

[Cal Cetín]

I guess I forgot that politics is logical and sensible.

[JasonT20]

If you can't make a logical and sensible argument about something political, that's on you.

[Cal Cetín]

OK, maybe let's go back and look at your premise of Congress *sincerely* rejecting someone for being too political. What do you think the odds are that Congress would do that for any office?

[JasonT20]

If you're going to take that kind of cynical view, then maybe you agreed with me here:

I made this comment because of how often conservatives complain about liberal judges being political, using phrases like "politicians in robes" and "legislating from the bench" and "judicial activism".

Conservatives aren't *sincere* in these objections then? This has been my whole point. If you think that politics has always infected the Supreme Court (whereas I think that it has not been as bad as it is now very often in U.S. history), then why not only vote for Senators that will uphold better principles?

[Cal Cetín]

I can't answer for what "conservatives" say, I'm simply noting that, even as far back as Jay and Marshal, they were appointing politicians in robes to the Supreme Court bench.

Sometimes you get a Cardozo, or a Harlan 2.0, who is less of a politician than some others. But I reject any narrative (from either the or the right) that "suddenly became worse when our adversaries started appointing judges."

If we are going to note a difference between then and now, maybe it's that the substance of judicial opinions has grown weirder and less tethered to the Constitution. But then we have Dred Scott in 1857, which really went of the deep end and is only defended by (a) supporters of slavery and (b) leftists who try to tie slavery around the Constitution's neck like an albatross.

[santamonica811]

"...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...."

Josh, is it too early in your career for me to start throwing around the word, "heroic"? My only concern is that you might sprain your shoulder patting yourself on the back. But heroes like you are willing to take on those sorts of risks, I reckon.

Keep up with the good fight. A nation turns its lonely eyes to you, looking for your strength and courage.

[Commenter_XY]

So what would actually happen if Roe was overturned, and the states had to address abortion their their elected legislatures?

To me, this is the wisest course: let the people decide for themselves (via their elected state legislatures) in each state how they want to handle abortion. Abortion is a social, political and moral question that really should not be decided by the judiciary. That approach (dumping social, political, moral questions into the judiciary's collective lap) has created untold amounts of dissention in America.

The world in 2022 is a very different world than 1972. Our culture has changed. Our social mores have changed. The legal environment has changed. The velocity and pace of free information exchange are orders of magnitude greater. My point? I just don't see an extended Parade of Horribles in a post-Roe world. I do foresee quite a lot of activity for state legislatures, though. Is that so bad? (well, here in the People's Republic of NJ it is bad)

[Sarcastr0]

let the people decide for themselves (via their elected state legislatures)

Or, just let the people decide for themselves, which is the pro choice position.

[Josh R]

That's not a fair representation of C_XY's argument. He is arguing that the people (i.e., the elected branches) should strike the balance between a woman's liberty right to terminate a pregnancy and a fetus' right to life because judges are not equipped to strike that balance. My preference would be a National Choice bill that at least forbids states from proscribing most first-trimester abortions. But, I know there aren't sixty votes in the Senate for it.

[Commenter_XY]

You phrased it perfectly, Josh R. Thank you.

[JasonT20]

He is arguing that the people (i.e., the elected branches) should strike the balance between a woman's liberty right to terminate a pregnancy and a fetus' right to life because judges are not equipped to strike that balance.

If judges aren't equipped to strike that balance, then why would you expect voters to be better equipped to strike that balance? Are judges less capable of reasoning through complex issues than the average voter?

[Josh R]

Leaving issues in the hand of the voters is a feature of democracy.

[JasonT20]

You're happy to leave your free speech rights in the hands of voters? Right to own a gun? Right to religious freedom?

My point is that it is an inconsistent position to want to put abortion in the hands of voters, but not other questions surrounding constitutional rights. Even the question of whether abortion should be considered a right protected by the constitution is a question of legal interpretation that needs to be handled in the courts.

I'm pretty sure if the pro-life side thought that judges would declare that life began at conception and that abortion must be banned, they'd be happy to let judges make that decision. The argument to make abortion a matter for legislatures is made because they know that some states would severely restrict or outright ban it. It is not credible to believe that it is a matter of democratic principles for them.

[Josh R]

Firstly, I'm inclined to go with stare decisis and keep Casey. But secondly, if we started with a blank slate, I'm open to the argument that we have competing constitutional rights in the case of abortion (there aren't competing constitutional rights at stake in freedom of speech, gun ownership and religious freedom). As such, it might be better to let the majority hash it out, although (as I said above) I would like a single answer (The National Choice bill) for the entire country.

[JasonT20]

I'm open to the argument that we have competing constitutional rights in the case of abortion (there aren't competing constitutional rights at stake in freedom of speech, gun ownership and religious freedom).

There aren't competing constitutional rights in the case of abortion, unless you consider the developing life inside a pregnant woman to have constitutional rights or view that as a constitutional question to be answered. Without it having its own constitutional rights at stake, then there is only the matter of the woman's rights vs. the powers of the state. That is the same competing interest in the rights mentioned here. The pro-life argument is claiming a government interest in protecting the unborn. But without a constitutional right to life for these unborn on their own, that government interest, when expressed by a majority of voters, seems weak by comparison to a woman's right to decide whether to remain pregnant.

Pregnancy just has too many risks and burdens to impose it upon a woman to satisfy some voters' emotional and/or religious views about when a zygote, embryo, or fetus becomes a human being that can impose its needs upon that woman against her will.

[Josh R]

There aren't competing constitutional rights in the case of abortion, unless you consider the developing life inside a pregnant woman to have constitutional rights or view that as a constitutional question to be answered

That's the argument.

[JasonT20]

And again, why do you think voters, through their representatives, should be answering constitutional questions outside of constitutional amendments?

[Josh R]

The elected branches aren't answering a constitutional question. The argument instead is to let the elected branches decide between policies on whatever basis they wish when each policy has a legitimate constitutional claim because there is no principled way for judges to do so.

[not guilty]

In your view, do the reliance interests of one out of four women of child bearing age count for nothing? Like it or not, our society has structured itself around the general availability of abortion.

[tkamenick]

"Third, if oral arguments do not go well"

That's a laugh, do you really think these justices don't know exactly what they're going to do on a case like this before OAs?

[fafalone]

I find the entire line of argument that rights are limited to enumerated rights, especially given an amendment *explicitly saying that's not the case*, to be pretty much the opposite of the standards conservatives ostensibly hold. It's not wrong that it makes little sense under the 14th Amendment, but the complete judicial nullification of the 9th, and every non-enumerated right along with it, is a disgrace.

[JasonT20]

fafalone,

Intellectual consistency is difficult to manage for people that fully commit to partisan and/or ideological political movements. In order to advance their goals, they have to make a habit of engaging in motivated reasoning. (Goals come first, rationalizing those goals comes after.) That isn't a failing that is only a feature of any particular political viewpoint, of course. But for any on the right that were reflexively thinking about how the left does that too, there is a reason why tu quoque is a logical fallacy.

When Prof. Blackman wrote, "Camp #1 argues, correctly, that Roe has no basis in the Constitution," he wasn't thinking about all of the other unenumerated rights that he would support existing in the Constitution. (Parental rights, perhaps?)

He also probably doesn't give a second thought to the 9th Amendment or its history very often, in any case. Robert Bork infamously referred to it as an "ink blot" during his confirmation hearing for his nomination to the Supreme Court in 1987, saying that he didn't know what it meant (probably in the sense that he didn't know what judges were supposed to do with it). This Cato article explains what it means as well as I could. Or, as the article references, as Justice Gorsuch said during his confirmation hearing, "I think it means what it says."

[fafalone]

: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 see you live in the alternate universe where Fox News isn't the most viewed of all the news outlets. Where the WSJ, NYPost, and other conservative outlets don't exist. Where Sinclair doesn't push conservative views through a vast network of local news it owns.

You're delusional.

[Rev. Arthur L. Kirkland]

Which issue will be the most important precipitate for enlargement of the Supreme Court?

___ Abortion

___ Gun safety

___ Voter suppression

___ Religion-related privilege

___ General bigotry

___ Gridlock/partisanship/election results

___ Pandemic management

[JasonT20]

I'm against simply enlarging the Supreme Court. The basic reason for that is that it wouldn't solve anything beyond one President being in office with a Senate majority of his party.

I think the only way to bring legitimacy back to the Supreme Court (and the federal courts more broadly) is with a couple things in a constitutional amendment:

- Do away with lifetime appointments - My suggestion is for lower courts to be a 10 year term, with the ability to be reappointed once. Supreme Court terms could be 18 years, with a rotation staggering them every 2 years.

- Bring back a supermajority requirement for confirmation, but require a timely vote on the nomination. This would have the side benefit of doing away with the whole "blue slip" nonsense that allows individual Senators to torpedo a lower court nominee from their state.

Of course, none of those suggestions would happen as long as one party is content with who is sitting in the federal courts or the Supreme Court. On the one hand, it is good that it isn't easy to amend the Constitution, but on the other, politics makes it virtually impossible to use Article V to deprive one side of power that they want to keep.

[Andy Hawks]

Camp #5: Overturn Roe/Casey without overruling them by cabining them to their facts. Reaffirm Roe/Casey but only for those states that do not grant fetal personhood rights, while allowing states to grant such rights. Here's the full argument: https://www.supremecourt.gov/DocketPDF/19/19-1392/192609/20210916131541917_41445%20pdf%20Hawks.pdf