The Volokh Conspiracy
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Where was Justice Kagan in Dobbs?
The former Dean exercised her right to remain silent to ensure maximum space for negotiation at conference.
Usually, Justice Kagan is one of the Court's most effective questioners. Indeed, she can easily measure the climate of the Court. Her questions are often designed to recruit the Court's moderates to her position. Yet, during Dobbs, Justice Kagan was missing in action.
Her first question didn't appear till page 32 of the transcript. And it wasn't really a question. She went on a long, rambling rant about stare decisis. It stretched more than two full pages in the transcript. She was about as concise as Justice Breyer. At the end, she said "So I guess I just wanted to hear you react to that." Huh? Kagan seemed so unfocused and undisciplined with this question. All of this valuable time could have been used to bolster Kavanaugh, Roberts, and Gorsuch. But Kagan wasted it. And there was no follow-up.
Kagan's second question came during the seriatim round. She asked what the intermediate standard would look like. Again, there was no follow-up question. Or any effort to appeal to the Court's moderates.
Kagan had no questions for Julie Rikelman, counsel for the clinic. She had one question for Solicitor General Prelogar. Again no follow-up question, and nothing during the seriatim round.
What gives? My suspicion is that Kagan exercised her right to remain silent in order to ensure maximum space for negotiation at conference. She will do her level best to moderate the outcome. Kagan may even be willing to uphold Mississippi's law to avoid making any broader pronouncement about Roe and Casey.
I will have much more about the case in a Newsweek piece soon.