The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Barrett has something of a tell. In at least two big cases, her first question in oral arguments gives away her bottom line.
For example, her first question for the petitioners in Fulton v. City of Philadelphia suggested a hesitancy to overrule Smith:
Good morning, Ms. Windham. So you just kind of indicated that -- you know, that maybe Smith shouldn't have been applied here, and you argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you're right about that, why should we even entertain the question whether to overrule Smith?
Lo and behold, Justice Barrett did not reach the question about whether Smith should be overruled, because the Philadelphia policy was not neutral and generally applicable.
Her first question for the respondents in California v. Texas focused on traceability.
Good morning, General Hawkins.
I want to go back to Justice Gorsuch's questions about standing for the individual plaintiffs. So let's say that we agree with you that the mandate, by making them feel a legal compulsion to purchase insurance, has caused them a pocketbook injury. Why is that traceable to the defendants that the individuals have actually sued here? I mean, I can see how it's caused by or traceable to a mandate itself, but how is it traceable, say, to the IRS or to HHS? Why is it their action that's actually inflicting the injury?
At that point, none of the Justices had asked about traceability. And, lo and behold, the Court's decision turned entirely on traceability.
Justice Barrett puts her cards on the table with her first question.
What will Justice Barrett's first question be in Dobbs?
Here is a best-case-scenario question:
General Prelogar, this Court said in Washington v. Glucksberg that the Due Process Clause "protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition." Can you explain how the right to abortion recognized in Roe and Casey is "deeply rooted in this Nation's history and tradition"?
Here is the break-the-glass question:
Mr. Stewart, we granted certiorari to decide "Whether all pre-viability prohibitions on elective abortions are unconstitutional." If we agree with you that the answer is no, why should we even entertain the question whether to overrule Roe?
We shall see.