A Message From A Current 3L and FedSoc Officer About Dobbs

This message is representative of what I've been hearing.

A current 3L, and FedSoc officer sent me this message after reading my post about Dobbs:

Professor Blackman,

I really enjoyed your article in the Volokh blog about the FedSoc Convention's approach to Dobbs. Unfortunately classes didn't allow me to attend—it'll happen someday.

Reading the article, I think there's merit in all those positions, and they're not mutually exclusive either. I strongly identify with Camp #1, and I think Camp #3 is the most likely. The Court will probably strike down the Mississippi law while engaging in a bit of trickery to avoid actually affirming Roe and Casey. But in reality, it will be a reaffirmation.

This of course means Camp #1 is a potential reality. I'm reminded of the discontented questions I frequently field from my right-wing non-lawyer/law student friends. "Conservatism won't even defend itself; why should I defend it?" In this case, "it" is usually some arguably conservative politician, etc. But I must confess to being somewhat defenseless against the argument. "FedSoc judging"—if I can call it that—seems to be largely a form of radical judicial deference and abstention. That's fine—excellent, even—in the abstract. The problem is, instead of deferring to the original meaning, stare decisis be damned, it's all too often deference to the status quo. As a result, all we've accomplished is to build a bulwark around all the injustices and wrongs that FedSoc was created to right.

I know this is painting with a broad brush, and there are many, many good judges who do not see it that way (God bless Justice Thomas and his Gamble concurrence), but I fear that it's too few to matter. I only hope I'm wrong. Otherwise I feel like I'll be forced, kicking and screaming, to give theories like "common good constitutionalism" a real hard look. For if originalism does not actually preserve the original Constitution, then I have to wonder where its value lies.

Great article as always. Forgive my ramblings…

This message is representative of what I've been hearing. There are many, many consequences for originalism, if Dobbs reaffirms Roe and Casey. Bostock was just a warning shot. Dobbs could severely wound the movement I care very deeply about, and indeed the rule of law more broadly if conservatives seek other channels for reform.

Comments

[SimonP]

And this, ladies and gentleman who hire for law firms, is why you shouldn't hire people who put "Federalist Society" on their resumes. Let them scramble for the judicial clerkships from judges who are into this kind of vacant-headed sycophancy.

[Rev. Arthur L. Kirkland]

Are you suggesting a strong law firm wouldn't want a strident social conservative (broadly intolerant, science-disdaining, backward, on a Mission From God) as an associate in modern America?

[SimonP]

I doubt many of the women I work with would be happy to work with a man who felt it perfectly ordinary to opine on when she may be said to have had sufficient notice of a pregnancy so as to terminate it, if she so desired.

I mean, on the one hand, we have a nation of women who are worried about what will happen if the Court decides that they don't have a constitutionally-protected right to decide whether to continue their pregnancies, since they know that subjecting that decision to pure politics means a lot of red-state politicians - who care only about getting themselves re-elected and not sound policy - are going to restrict their freedom as much as possible. On the flip side, we have hacks like Josh worrying about the hit to morale that the Federalist Society will take if the cases don't go "their way."

Gosh, however will that vile little boys' club manage to survive?

[Cal Cetín]

"we have a nation of women who are worried about what will happen if the Court decides that they don't have a constitutionally-protected right to decide whether to continue their pregnancies"

Have you actually talked to women who are prolife? I certainly have. So has former prochoicer (and postabortive woman) Deanna Falchook:

https://thefederalist.com/2019/06/28/learned-pro-life-women-abortion/

[Cal Cetín]

Here's the "boys' club" at Hillsdale College:

https://www.hillsdale.edu/campus-life/clubs-intramurals/federalist-society/

Though to be fair, as Blackman shows, not all Federalist Society members are prolife.

[Cal Cetín]

Your mileage may vary from one jurisdiction to another regarding political discrimination:

https://www2.law.ucla.edu/volokh/empspeech.pdf

But as I heard during the sexual orientation debate, once you accept the principle of the Civil Rights Act of 1964, you *must* ban all forms of private discrimination! /sarc

Seriously, explain why you can't discriminate against an employee because he believes that God created the world (including fake fossil records) 6,000 years ago, but you can discriminate against an employee because he thinks federal spending is too high.

[SimonP]

I don't recall saying that the "nation of women" in question meant "literally every woman in the country."

I don't care what prolife women have to say about it any more than I care about what prolife men have to say about it. Just because some women want to invite state interference into their reproductive freedom doesn't mean it's right. Some women were against the women's enfranchisement, as well. So?

[Cal Cetín]

Ah, so the nation of women is those women who *actually matter,* not the false-consciousness-having women who you've never met but whose perspective you believe you can safely invalidate.

So, really, these women you like wouldn't be comfortable working with *other women* who have prolife views.

[SimonP]

Who's "invalidating" perspectives? I'm just saying that prolife women are wrong for the same reasons prolife men are. And no, I don't care much what wrong people have to say, particularly when they're so busy trying to impose their views on the rest of the country.

[Cal Cetín]

"I don't care much what wrong people have to say"

Is this the liberal tolerance I hear so much about? 🙁

[Cal Cetín]

I seem to recall the slogan of Greenhaven Press's *Opposing Viewpoints* series - that those who do not understand their opponent's position do not understand their own.

[SimonP]

Conservatives get awful relativist when non-conservatives have confidence in their views.

But look, Cal - I hate the sin, not the sinner. I'm not trying to throw prolifers in jail. I just don't think our constitutional law should be radically reshaped so that we're all forced to be prolife, as well.

[Cal Cetín]

Relativist, you say? If it's relativist to be minimally intelligent, then I'm guilty.

I've read the strongest arguments out there for the don't-dare-call-us-pro-abortion position, including legal powerhouse Laurence Tribe. Tell me, does this make me a relativist?

This is a blog run by people whose very livelihood often depends on studying the other guy's position and writing out a careful rebuttal. I didn't know I'd have to defend that sort of common-sense approach here.

[Cal Cetín]

"I just don't think our constitutional law should be radically reshaped so that we're all forced to be prolife"

No, you want constitutional law to be radically reshaped so that we're all forced to be pro-abortion.

[Cal Cetín]

"I doubt many of the women I work with would be happy to work with a man who felt it perfectly ordinary to opine on when she may be said to have had sufficient notice of a pregnancy so as to terminate it, if she so desired."

Would these women be comfortable working with an Orthodox Jew who believes God wants traditional domestic roles for women?

[Cal Cetín]

Would they want to work with a Muslim who believes that it's a wife's duty to have sexual relations with her husband whenever he wants, or who believes in polygamy?

[SimonP]

I would imagine not, if he spoke openly in public about his fundamental disrespect for his colleagues and advocated for laws that would restrict their freedom to choose how to live their own lives. Which Josh has done.

[Cal Cetín]

Just to be clear, I'm not defending Blackman's bizarre pro-abortion views. The fact that he's not pro-abortion *enough* for you doesn't change what he is.

He wants the fate of the unborn consigned to the tender mercies of legislative votes, where the unborn will have no rights those in power are bound to respect.

You'll hear no defense of Blackman from me, except in the sense that if *he* qualifies as a dangerous prolifer, how would you treat *real* prolifers?

[SimonP]

It's strange that, at the same time you're running the Scotsman play on Josh, you're lecturing me about not respecting "prolife" women's perspectives.

Josh is "prolife" in exactly the sense that everyone in the mainstream means by the term "prolife." He believes that the state should have a say in how woman manage their reproductive healthcare. The fact that he does not go so far as to embrace constitutional fetal rights - which is straight-up wackadoodle nonsense anyway - just helps to show how hollow and cynically misogynist "prolife" political activism has been from its inception.

[Cal Cetín]

For someone who doesn't care what wrong people have to say, you're certainly making at least some attempt to engage me.

"constitutional fetal rights - which is straight-up wackadoodle nonsense anyway"

Let's see...I can believe you, or I can believe an emeritus professor from the University of Oxford Faculty of Law who has taught in the United States and is familiar with the legal heritage of common-law countries.

But again, you don't care what wrong people have to say.

Aren't you the least bit curious, though?

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

[not guilty]

I refuse to call a political movement with an active domestic terrorist wing ¨pro-life¨. Assassinating health care providers and bombing buildings renders that an inaccurate use of the language. I do sometimes refer to Eric Rudolph´s side of the culture war.

[Cal Cetín]

By that logic, you're on Kermit Gosnell's side. Why would you brutally kill so many babies *after* they are born?

[Cal Cetín]

Another pro-abortion murder:

"It’s obvious he was pretty dangerous because he killed someone. He didn’t do it by strangulation necessarily. He did it but slamming them up against a wall and around like a ragdoll. He also knew that she was pregnant and had no concern for her pregnancy, his child. So I would say he’s pretty dangerous.”

https://www.ozarksfirst.com/local-news/local-news-local-news/derik-osborn-sentenced-to-life-in-prison-for-the-murder-of-his-pregnant-girlfriend/

[not guilty]

Kermit Gosnell is in prison where he belongs.

[not guilty]

Abortion prior to viability should be safe and legal. Gosnell´s practice was not. I have no problem with the state prosecuting post-viability abortions which are unnecessary to preserve maternal life or health.

[Cal Cetín]

I have no problem punishing Eric Rudolph, either, so what is your point?

[not guilty]

Some of the assassins attempted to raise the defense of necessity at trial -- that their conduct was necessary to save the lives of ¨babies¨ that the doctor would have aborted. Do you agree that this defense was properly disallowed?

[Cal Cetín]

Obviously.

Do you agree that killing newborns is a line you never want to cross?

Would you support laws against killing all humans born alive?

Or do you join the Singer wing of the prochoice movement, and allow infanticide in certain cases?

[M L]

"I refuse to call a political movement with an active domestic terrorist wing ¨pro-life¨."

Huh? The left was never in danger of being "pro-life." They are a party of death through and through, even without the domestic terrorism of dozens of BLM / Antifa killings, thousands of assaults and billions in destruction this year alone.

[not guilty]

I don´t agree with killing newborns at all. Why would you ask?

[SimonP]

I am familiar with and have read Finnis's work. I view it as academic, theoretical work that is interesting, when studied, taking its various underlying assumptions for granted. In that sense, it is similar to other Catholic theological writing. I do not view it as particularly useful or persuasive for developing the messy thing we call American constitutional law, particularly when he purports to comment directly on American law.

There are a number of problems with the piece you've linked. He cherry-picks historical evidence; applies an originalist method of interpretation selectively and inconsistently; and reaches a conclusion that is puzzling: Abortion is unconstitutional. What, exactly, are we supposed to do with that conclusion?

Ironically, according to Finnis, the only real-world application of that conclusion is to do what Josh has advocated, which is allow political forces to again determine when and whether women may terminate their pregnancies. Because Finnis understands, in a way that you apparently do not, that declaring abortion to be "unconstitutional" can only mean that the Fourteenth Amendment does not prevent states from outlawing it. It does not outlaw abortion itself, or compel any state to outlaw it.

[Cal Cetín]

"I am familiar with and have read Finnis's work."

Then why did you claim that "I don't care much what wrong people have to say"? Or was that in the context of dismissing the views of *women*?

[SimonP]

Then why did you claim that "I don't care much what wrong people have to say"? Or was that in the context of dismissing the views of *women*?

Are you complaining that I am more well-read than I led you to believe?

[Cal Cetín]

"Josh is "prolife" in exactly the sense that everyone in the mainstream means by the term "prolife.""

It's not that I don't believe you but...I don't know how to finish this sentence.

In his post at 3:54 PM on the 13th Blackman said he wants to "restore abortion to the political process."

He also said "So long as women have a meaningful opportunity to obtain an abortion after learning of their pregnancy, there is no "undue burden.""

Of course he's incoherent, as all "prochoice" positions, not just his own, are incoherent.

[David Nieporent]

I doubt many of the women I work with would be happy to work with a man who felt it perfectly ordinary to opine on when she may be said to have had sufficient notice of a pregnancy so as to terminate it, if she so desired.

Thank you for mansplaining.

Would they be happy to work with a man who felt it perfectly ordinary to opine on whether she could take heroin or not pay taxes or carry a firearm, if she so desired?

[Michael P]

That's different because he clearly explained that killing a fetus is just another ordinary personal healthcare decision like having a cancer or other clump of parasitic cells removed.

[SimonP]

I would imagine that any man opining on laws that would specifically prohibit women from doing such things - as abortion rights are pretty much exclusive to women - would draw the same ire.

And you don't know what "mansplaining" means.

[M L]

Pregnancy and abortion is not exclusive to women, you transphobic bigot.

Ladies and gentlemen who hire for anyone, persecute this transphobic bigot.

Only hire those who support the right of ALL persons, including trans, to murder their unborn babies.

[not guilty]

A murder and a lawful abortion are mutually exclusive, like red and green or a circle and a rectangle. One cannot be the other.

[M L]

I'm speaking colloquially.

[David Nieporent]

I would imagine that any man opining on laws that would specifically prohibit women from doing such things

The laws in question, which all actually exist, do specifically prohibit women from doing such things.

[ReaderY]

If Dobbs strikes down the Mississippi law, what we’ll have is another Casey. Casey, after all, was at the time regarded by the pro-Roe camp as a conservative decision that cut back on Roe significantly, but this virw was pretty much obscured by relief that Roe, although cut back, was still going to have real teeth.

Same here.

A decision that strikes down the Mississippi law means Row is going to be alive and well, and if the Courts whittles at it another notch nobody is really going to notice much, much as in Casey.

On the other hand, if it upholds the Mississippi law, Roe will be be gone for all intents and purposes, its remainder only a matfer of time.

[Rev. Arthur L. Kirkland]

" Otherwise I feel like I'll be forced, kicking and screaming, to give theories like "common good constitutionalism" a real hard look. "

Be my guest, fledgling right-winger. Become an even more irrelevant, disaffected, superstitious culture war casualty in a modern, improving America that has been rejecting your political preferences for twice so long as you have been alive.

Carry on, clingers . . . but solely so far and so long as the progress shaped by better Americans permits, of course.

[DaivdBehar]

OK. Boomer. You need to be replaced by a diverse. Diversity is the strength of our country.

Nothing is stupider than the lawyer. Artie is making the same mistake as the Democrat Census workers. Hispanics are mostly white, conservative Republicans. They are not diverse. They are conservative patriotic Americans. They are all Catholics and oppose abortion.

[Jaypd]

Did you have a stroke while writing this

[SimonP]

DavidBehar is an insane person who rants frequently about the need to murder all lawyers. Pay him no mind.

[not guilty]

Does the Federalist Society have a position as to whether Buck v. Bell, 274 U.S. 200 (1927), was correctly decided? Do they agree with Justice Holmes that the Commonwealth of Virginia was properly situated to deprive Carrie Buck of reproductive choice?

[Cal Cetín]

Assuming the conclusion - makes a moral equivalence between childbirth on the one hand, and abortion and sterilization on the other.

Anyway, Blackman (like many Federalist society members) is regrettably *not* prolife, but wants to put the lives of unborn human beings up for a vote in state legislatures.

[not guilty]

Do you believe that forced sterilization is within the proper ambit of a state government, or not? That is no less intrusive than banning pre-viability abortion.

[Cal Cetín]

No and no.

[bernard11]

I feel like I'll be forced, kicking and screaming, to give theories like "common good constitutionalism" a real hard look. For if originalism does not actually preserve the original Constitution, then I have to wonder where its value lies.

So if things don't go his way he's all in on a Roman Catholic theocracy. Is that right?

[not guilty]

What standing does the world´s most prominent employer of child sex abusers gave to opine on matters of sexual morality?

[not guilty]

That should be have, not gave.

[bernard11]

I don't think they have any standing to opine on morality in general.

They are not only employers, but also protectors.

[Michael P]

The pro-abortion youth today have mostly given up on liberty and now demand communism and thought control, which seems rather more pressing -- and much more substantiated -- a concern.

[SimonP]

The flip from "originalism" to "common good constitutionalism" is such a strange one, since they would seem to have fundamentally different frameworks and rationales. I don't know how someone who's spent the past few decades talking about the importance of sticking to the original meaning of the text, from a rule of law perspective, can suddenly drop all of that and start talking about the law as the reflection of a rational order that we have to interrogate directly.

Never mind which, that the flip slips right by Dworkin's legal theory, which balances the need for a coherently moral body of law and the need to fix the law in precise utterances. Do any of these people read?

[Chernobog]

It makes sense if you're trying to cover an unprincipled outcome-oriented jurisprudence with the veneer of a legal theory.

[SimonP]

That's a bingo!

[Brett Bellmore]

It also makes sense if you've come to the conclusion that the Constitution is dead, and it's time to move on.

[Rev. Arthur L. Kirkland]

Disaffected, dispirited, resigned-to-replacement clingers are among my favorite culture war casualties -- and the core audience of a White, male, right-wing blog.

[ReaderY]

I think a real possibility, which I don’t believe Professor Blackman had as an option, was that the Court would essentially punt, answering exactly the cert question and nothing else, and remanding to the 5th Circuit to apply its decision.

I think the fact the Court rephrased the cert question strongly suggests that this is the strategy. It’s something of a Roberts specialty.

The question posed is not whether the Mississippi law is constitutional, but whether abortion can sometimes be prohibited prior to viability.

My guess is that the court will answer this question yes, articulste some sort of extremely vague hand-waving standard, and then remand for the question whether the Mississippi law meets the standard or not.

That will keep the ball in the air several years more. I suspect that the Court wants to chip away at Roe more gradually, but doesn’t want to actually uphold this law while it is in the process of doing so.

I suspect the court will deny cert for heartbeat type laws, but will take up a case that represents a more gradual chipping away at Roe as the first statute it actually upholds, then proceed over several cases and several years. It will then take this case up again, and finally uphold it, after the state of the law has caught up.

[Bored Lawyer]

Agreed. Punting seems to be the default action of the Roberts court.

[SimonP]

"Punting" is what Roberts does, when he can, to save the Republican party from itself. If he "punts" here, it'll be because he's worried about what a case striking down Roe will do to midterm turnout on the left and center.

[David Nieporent]

I'm always puzzled by people who think both that Roe is overwhelmingly popular among voters and that overturning Roe would be terrible for abortion rights.

[Sarcastr0]

I agree with you - the precedential predicate has been laid for a while at this point, and the concept has been out there and baked in. If it happens, it will not to move the needle for the mainstream voter, at least initially. Though follow-on public interest stories may be a heckuva thing.

However, I also think Roe is a scalp that, if taken, will embolden the judicial right to push for some further, crazier, stuff, with resultant disaffection when it is not delivered.

That's the issue in the OP - not abortion per se, but the radicalization of the younger judicial right to push beyond what can be rationalized to the public.

[SimonP]

It is not particularly hard to understand when you look at the divergence between the sorts of policies Republican voters claim to support and the sorts of policies Republican politicians actually enact.

[David Nieporent]

SB8?

[not guilty]

The District Court limited discovery to one issue—whether 15 weeks LMP is before or after viability. The Court of Appeals opined that that limitation was not an abuse of discretion. Jackson Women´s Health Org. v. Dobbs, 945 F.3d 265, 275 (5th Cir. 2019). If SCOTUS opines that a pre-viability ban on abortion may be valid, a remand to the District Court for additional discovery and development of an evidentiary record sufficient to consideration of the asserted state interests.

[ReaderY]

I think you have a point here. The cert question seems tailor made so that it doesn’t even need to say “yes,” it only needs to say “maybe,” to return the case to the District Court for a new trial, with the state being allowed to present a wider range of evidence regarding its interests. The Supreme Court wouldn’t have to say anything more than “Maybe abortion decisions prior to viability might sometimes be permitted.” It wouldn’t even have to give a definite “yes.”

This approach would not only take things slow, it would enable the Supreme Court to say a few years later that it has carefully considered the manner if it then wants to make a definite decision.

Under this therory, its opinion would likely say something signalling to states that it isn’t willing to entertain a frontal assault on Roe at this time but would consider more gradual cutbacks. It would likely decide a few cases cutting back at the efges before it gets into a position where it is prepared to decide on a restriction as far-reaching as Mississippi’s. And it might keep Dobbs in the air in federal court until it reaches that point, perhaps bouncing back and forth another intermediate time.

Under this theory, it might eventually uphold the law in a few years, after the legal ground has shifted in the meanwhile.

[Eric VonSalzen]

Just a dose of reality here: In the (very unlikely) event that the Supreme Court were to overrule Roe and Casey, that would leave the abortion issue where it used to be, with the States. I predict that States with at least 60% of the US population would adopt laws that would allow the vast majority of the abortions that are allowed under Roe/Casey. Show me I'm wrong.

[Bored Lawyer]

I don't know about the 60% number, but you are correct that many states will permit abortions at least at some stage of pregnancy, and probably a pretty advanced one at that.
Scalia would have said that that is the way it should be. It is a matter for the states, period. Same with same-sex marriage.

[not guilty]

Has any SCOTUS decision initially recognizing a fundamental constitutional right been overruled by a subsequent decision? I can´t think of one.

[SimonP]

Lochner comes to mind.

[not guilty]

The reasoning of Lochner has been abandoned, but I am not sure that it has been expressly overruled.

[SimonP]

You might be technically correct, but I don't think anyone would refer to it now as "good law."

[Cal Cetín]

Adair v. United States (right to fire union members)

Adkins v. Children's hospital (right to pay women employees less than minimum wage)

Nebbia v. New York (right to sell milk to the poor at reduced prices)

New State Ice Company v. Liebman (sp?) (right to go into the ice business without seeking the permission of your competitors) (prompting Brandeis' famous laboratories-of-democracy dissent)

etc.

[Cal Cetín]

Adair v. United States (right to fire union members)

Adkins v. Children's hospital (right to pay women employees less than minimum wage)

Nebbia v. New York (right to sell milk to the poor at reduced prices)

New State Ice Company v. Liebman (sp?) (right to go into the ice business without seeking the permission of your competitors) (prompting Brandeis' famous laboratories-of-democracy dissent)

etc.

[not guilty]

Economic regulations have typically not been held to abridge fundamental rights.

[Cal Cetín]

"Has any SCOTUS decision initially recognizing a fundamental constitutional right been overruled by a subsequent decision? I can´t think of one."

That's what I was responding to.

If you say economic rights aren't fundamental rights, I'd say the same about the "right" to abortion.

I'm curious about the idea that abortion is a fundamental right, but selling cheap milk to the poor, or going into business without having to get the approval of your competitors, is *not* a fundamental right.

[not guilty]

The courts disagree with you. Fundamental rights is a term of art.

But I suspect you know that.

[Cal Cetín]

The court said in Adair that forbdding a business from firing union members was "an arbitrary interference with the liberty of contract which no government can legally justify in a free land."

https://www.law.cornell.edu/supremecourt/text/208/161

So, yes, they said it was a fundamental right...until they overruled it, thus answering your question.

[not guilty]

You may wish to review United States v. Carolene Products Co., 304 U.S. 144 (1938).

[David Nieporent]

You're kind of begging the question; they used to be held to do so. And then they weren't. Which directly answers your original question.

[ReaderY]

I tend to agree with Cal Cetin here. In the late 19th and early 20th century, the Supreme Court subjected economic regulation to much greater scrutiny than it did following the Carolene Products decision, and used language to describe liberty of contract similar to what it today uses regarding sexual matters.

While it’s true it didn’t use the soecific languange “fundamental rights,” it functionally demoted liberty of contract from a heightened-scrutiny to a rational-basis scrutiny right.

And that’s what’s meant by overturning a fundamental right.

If that doesn’t count, then the Supreme Court could easily invent new vocabulary describing abortion which functionally subjects abortion laws to less scrutiny and upholds them more often, without ever formally changing its prior characterization of abortion as “fundamental.” If a right is only officially demoted when the Supreme Court says the magic words, the Supreme Court can get the job done without having to use magic words in this case either.

[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

[Brett Bellmore]

"Dobbs could severely wound the movement I care very deeply about, and indeed the rule of law more broadly if conservatives seek other channels for reform."

See, you still don't get it. The "law" in "rule of law" IS the original meaning of the Constitution! That's what saying originalism is an interpretive approach means: It's an approach to finding the meaning of "the law".

So, if originalism has given up on bringing the law in practice into alignment with the <b<law in theory, it is, itself, no longer consistent with the rule of law!

You've come to think of the "law" in "rule of law" as being something different from the meaning found through originalism. Essentially, you've turned originalism into a logic game lacking any meaningful real world application.

[dwb68]

meh. Conservatives have been here before with Roe v Wade. Reagan/Bush had the chance to appoint lots of judges in the 80s. Conservatives in the 80s ran on getting it overturned. The result was O'Connor, Souter, and Kennedy joining the majority in Casey, lol.

3Ls will survive and move on.

[Rev. Arthur L. Kirkland]

Over the long term, I care little whether this Court overrules or eviscerates Roe.

The culture war's trajectory is predictable -- conservatives can focus on building positions that can withstand erosion as long possible, or they can go all-in and have their bluff called by the improving and progressive American mainstream, comprehensively and (for gun nuts, anti-abortion absolutists, wall-builders, religious zealots, etc.) catastrophically.

Some clingers want to go down in a blaze of righteous glory. Others wish to try to hold back as much progress as they can for as long as they can. Lose quickly or lose slowly, clingers. Either way, I will be content.