Justice Blackmun's Papers?!

I did not expect Chief Justice Roberts to say that the viability line was dicta based on Justice Blackmun's papers.

Recently, James Robenalt wrote in the Washington Post about the drafting of Justice Blackmun's Roe decision. Initially, Blackmun did not draw the line at viability. His draft opinion observed that the Court could not, "at this point in the development of man's knowledge," specify "when life begins." Indeed, none of the parties in Roe argued that viability was the correct standard. Rather, this suggestion came from Larry Hammond, who was Justice Powell's law clerk.

In it, Hammond argued that the Supreme Court should not be in the line-drawing business, but if it did find it necessary to do so, viability seemed the most rational point where common agreement on the court could be mustered. Based on a newly decided lower-court case out of Connecticut, Hammond reasoned that the state's interest in protecting potential fetal life "becomes more dominant when the fetus is capable of independent existence (or becomes 'viable')."

And Hammond's memo ultimately prevailed on Justice Blackmun:

Nonetheless, Powell, through private correspondence, persuaded Blackmun to go along with viability. When the Roe v. Wade ruling was handed down in January 1973, it contained a trimester analysis that disallowed state abortion bans prior to viability.

Fast-forward to arguments in Dobbs. Chief Justice Roberts referenced, of all things, Justice Blackmun's papers. And he used those papers to suggest that the viability line in Roe was actually dicta! Go figure. One of my first articles was on the distinction between holding and dicta.

Roberts asked SG Stewart if viability was "an issue" in Roe. Roberts observed that "it wasn't briefed or argued." Then, he turned to the papers:

CHIEF JUSTICE ROBERTS: In fact, if I remember correctly, and I --it's an unfortunate source, but it's there --in his papers, Justice Blackmun said that the viability line was -actually was dicta. And, presumably, he had some insight on the question.

Definitely, an "unfortunate source."

Roberts returned to this theme during his discussion with Julie Rikelman:

CHIEF JUSTICE ROBERTS: And the regulations in Casey had -had no applicability or not depending upon where viability was. They applied throughout the whole range, period. So, if [Casey] didn't say anything about viability, it's like what Justice Blackmun said in --when discussing among his colleagues, which is a good reason not to have papers out that --that early, is that they don't have to address the line-drawing at all in Roe, and they didn't have to address the line-drawing at all in Casey.

Yikes. Not only did Roberts cite the Blackmun papers, he kvetched that the Justices should not release their papers "that early." Huh? Blackmun died two decades ago. Would Roberts still want Blackmun's papers from 1973 to be sealed?  Did Souter get it right? Roberts also may be addressing the still-unknown release schedules for papers from Justices Stevens and Ginsburg.

Comments

[Charles Nichols - CRTC]

Dicta is the part of the holding you don't like.

[M L]

But also, the holding is the part of the dicta that you like.

[B3R]

People who have not actually read Roe should do so and be reminded that there was no majority opinion as such. Basically, a majority of the court concurred in the result, but not why. The best guess in law schools was that the court somehow wove together a right from the penumbra of unenumerated rights in the constitution. It’s value as precedent is close to nil as a consequence.

Chief Justice Robert’s is merely a political hack who never should have been nominated, much less confirmed as a justice on the court.

[Gandydancer]

“… So, if [Casey] didn’t say anything about viability, it’s like what Justice Blackmun said in –when discussing among his colleagues, which is a good reason not to have papers out that –that early, is that they don’t have to address the line-drawing at all in Roe, and they didn’t have to address the line-drawing at all in Casey.”

This isn’t remotely a sentence in English, but the idea that it’s best that we peons not see how the sausage was made lest we learn about the crap that went into it is pretty clear.

Now… why is Obamacare still in effect now that is no longer even remotely defensible to call it a tax since the penalty has gone bye-bye? Surely there must be SOME case in the hopper to which Roberts could arrange cert if he had even the slightest shred of good character or shame?

[Gandydancer]

...capacity for shame.

[ReaderY]

Agree that this was absolutely the biggest bomb dropped in the oral argument. None of the lawyers were prepared to address it. One wonders how many years Roberts had been saving this one in order to bring it out at the right moment.

It’s a very interesting idea, but I find myself skeptical. Regardless of what Justice Blackman said in private negotiations with Justice Powell, regardless of what Roe intended — after all, Justice Burger wrote a concurrence in Roe assuring the public that the Court had not legalized abortion on demand — I think later courts came to see the viability line as central to at least Casey’s holding, and multiple later Supreme Court abortion decisions depended on it. So I don’t think there’s really a viable (pardon the pun) argument that it’s not part of the court’s precedents and can simply be declared to have been dicta and not a holding all along.

I do recognize that Roberts was trying to find a way to move the lime back to 15 weeks without overturning Roe. There may be a way to do that, but I’m skeptical that this way really makes sense. And it doesn’t look to me like the other 5 justices are interested in moving slowly. Thomas, Alito, and Gorsuch have already come out against Roe in previous opinions. And Kavanaugh and Barrett, the two Justices who haven’t yet committed themselves, said things at the oral argument suggesting they too are interested in going for all the marbles in one go.

[dwb68]

the main problem with the 15 week line is why nor 14.5 weeks? Or 13 weeks ( a trimester)? or 12.5 weeks? States will game the line unless there is a cogent test ("this far and no further")

[Twindad46]

Did Gorsuch ask any questions?

[not guilty]

Viability as dicta in Roe? The controlling opinion in Casey clearly didn´t think so.

Chief Justice Roberts is off base here.