Predicting Justice Barrett's First Question in Dobbs

Her first question often gives away her bottom line.

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.

Comments

[santamonica811]

In the past; I have (unfavorably) commented on many (many many??) of Josh's posts. But OPs like this one are one of the main reasons why I enjoy the VC so much. Yeah, he's probably signaling to this particular Justice. But there's nothing wrong with that. And Josh is making an interesting observation/speculation, and one that time will give a definitive answer to.

Thought-provoking post, for me. Nicely done, Josh.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

That's my main interest in Josh's posts -- his enthusiasm for the process, the possibilities, the what-ifs, although that's a pretty lousy description. IANAL, I despise the mess that has become of the legal system, a lot of his desires and conclusions leave me cold, but that has nothing to do with understanding the system, so I pay attention to Josh's enthusiasm unless he gets so deep into the legal weeds that there are just too many unknown words and hints.

[Brett Bellmore]

"Kremlinology" can be interesting, even though it's a shame we have any reason to engage in it.

[Sarcastr0]

We don't.

Some just find it fun.

[SimonP]

This post just illustrates his usual shortcomings.

Two oral argument examples are obviously not enough to establish whether this is Barrett's "tell." We'd have to examine a broader range of cases and outcomes to be able to determine that.

If there is a good reason to believe that these two examples are particularly indicative of how Barrett is likely to signal her position on Dobbs, Josh doesn't bother to explain it.

[Life of Brian]

Bah, humbug!

[Doug Heffernan]

Usual in the sense of making the law some sort of sports game, replete with speculation and predictions.

Predictions (or a "tell") have value for betting or playing poker. I'm not sure what value this sort of prediction has. The effect of any opinion will still happen on the same date.

If its signaling, what's the signal? If the outcome is clear with the first question, then that justice decided the case without hearing it. Why bother having oral arguments then? Just to give it all the illusion of a thoughtful, non-hack process?

[Bubba Jones]

By that logic, there is no value in any discussion of a case prior to the opinion being published.

If the outcome is clear with the first question, then that justice decided the case without hearing it. Why bother having oral arguments then? Just to give it all the illusion of a thoughtful, non-hack process?

This is a pretty common argument.

[NumaNumaPompilius]

Honestly, if a judge doesn't have a pretty good idea of how they're going to rule by the time they're hearing attorneys argue in a court room, that probably means they haven't bothered studying the briefs well enough. The vast majority of cases should be clear from the briefs alone. Oral argument is more of a chance to settle any niggling issues and clear up any remaining ambiguities that didn't get enough attention in the briefing. It impacting the final outcome should be the exception, not the rule.

[Dilan Esper]

Oral argument is even less important than that. It's basically a show. Rehnquist estimated it matters in 5 percent of cases. And that 5 percent is almost certainly not abortion cases.

[David Nieporent]

That's only true if by "matters" you mean "changes a justice's vote." But it affects the content of the opinion, not just the direction of it.

[Commenter_XY]

sm811....Do you really think the Justices even read VC?

[Kazinski]

I couldn't find it with a cursory search but I remember reading a WaPo article that said at least a few justices and clerks were at least occasional readers of the VC, of course that was when the VC was at the WaPo.

[NumaNumaPompilius]

I would be absolutely shocked if a majority of at least the conservative justices' clerks weren't regular readers of the VC. I'm not sure I've ever met someone with the background of a conservative SCOTUS clerk (Ivy League, FedSoc, interested in politics) who wasn't.

[Rev. Arthur L. Kirkland]

" I would be absolutely shocked if a majority of at least the conservative justices' clerks weren't regular readers of the VC. "

Where else could movement conservative clerks go? RedState? FreeRepublic? One America News? Stormfront? Gateway Pundit?
Instapundit?

It's not like they can be part of the mainstream.

[Syd Henderson]

I like how her mind works in those two cases. I hope she takes the second stance in Dobbs, but I'm not really expecting it. She seems like a good justice.

[Kazinski]

Nothing wrong with adding a little bit of Barrett fan fiction to go with the existing library of Kavenaugh fan fiction.

[mtkesq]

Neither is as good as his Chief Justice Elena Kagan fan fiction.

[OtisAH]

The value is solely for Josh. He either gets to claim he knew she would betray the cause, he knew she would honor the cause, or say “In a shocking change to her usual pattern she betrayed/honored the cause.”

[Davedave]

"Can you explain how the right to abortion recognized in Roe and Casey is "deeply rooted in this Nation's history and tradition"?"

Not the zinger Josh imagines. Because the answer is 'yes', takes about three minutes, and is utterly irrefutable. Obviously Barrett isn't that dumb.

[m4019597]

Two examples are not a trend.

[bernard11]

Justice Barrett has something of a tell.

Justice Barrett puts her cards on the table with her first question.

No need to rely on a tell if she puts her cards on the table.

[OtisAH]

Meh, so metaphors and poker and analysis aren’t among Josh’s strong suits. The important thing is he knows what he’s trying to say.

[eyesay]

I think this blog should flush Josh straight away. Even with out him, it's a full house.

[mydisplayname]

The "deeply rooted" tradition thingy has always troubled me.

Deeply rooted in American history and tradition is the belief that, even while inside the greate fyshe, Jonah remained himself: the founders clearly distinguished each seed from the husk or pod containing it.

Leaving that aside momentarily, the American tradition also has always distinguished the terms "quickening" and "viability." A mother knew of the quickening of her child long before such quickening could be detected by others and, during that interval of maternal privacy, could make a variety of choices. Even after that interval, a midwife or physician might provide a mother with the comforting untruth -- a "white" lie, for those who embrace potentially racist terminology -- that the seed within her had not yet germinated. Similarly, early American farmers harvested and made use of immature crops ("summer" squashes, for example, with their tender and edible rinds), distinguishing them from their fully mature cousins ("winter" squashes).

[jdgalt1]

I like the way Josh puts this observation -- Barrett gives a "tell."

One could interpret her right-out-of-the-starting-gate questions two ways. (1) She has mostly made up her mind much too soon (something I've been warned not to do during jury instructions), presumably unlike other justices. Or (2) They've all mostly made up their minds but the others are better at staying poker-faced, a skill you probably want to have while parties to the case are in the room and expecting you at least to consider their pleadings.

In either case she might want to make an effort not to show the tell.