The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Tuesday, the Wall Street Journal Editorial Board published a piece titled, "Abortion and the Supreme Court: This is the moment for the Justices to turn the issue over to the voters." The conclusion of the essay is bold. The Editorial Board expressly called on the Supreme Court to overrule Roe.
Far better for the Court to leave the thicket of abortion regulation and return the issue to the states. A political uproar would ensue, but then voters would decide on abortion policy through elections—starting in November. . . . In Dobbs the Court can say that such a profound moral question should be decided by the people, not by nine unelected judges.
I see a shift in the Editorial Board's position. In July 2018–shortly after Justice Kennedy announced his retirement–the WSJ published an editorial titled "The Abortion Scare Campaign: Why Roe v. Wade and same-sex marriage are likely to survive after Kennedy."In no uncertain terms, the WSJ predicted that the nominee–who was most likely to be Justice Kavanaugh–would not overrule Roe:
The liberal line is always that Roe hangs by a judicial thread, and one more conservative Justice will doom it. Yet Roe still stands after nearly five decades. Our guess is that this will be true even if President Trump nominates another Justice Gorsuch. The reason is the power of stare decisis, or precedent, and how conservatives view the role of the Court in supporting the credibility of the law. . . .
A post-Kennedy Court is likely not to overturn Roe and its successors but it will probably uphold more state restrictions. This won't please some social conservatives, but it would put U.S. law close to where American public opinion is—keeping abortion legal but making it rarer than it now is. . . .
No one on Mr. Trump's list of nominees will claim to want to overturn Roe—and not because they are lying. In their caution and deference to precedent, they will be showing proper conservative respect for the law and the reputation of the Court.
In four years, the WSJ has gone from "the post-Kennedy Court will not overrule Roe" to "the post-Kennedy Court should overrule Roe." I am not certain why this change occurred, but I suspect the WSJ can sense which way the political winds are blowing. Abortion has been effectively illegal in Texas since September, and the world hasn't stopped. And at this point, a decision upholding Roe would lead to a massive fracturing of the conservative movement. (I wrote about this potential schism in what turned out to be an influential post.) In any event, I commend the WSJ for this shift in position.
Yet, other parts of the editorial left me concerned. Indeed, while reading the piece, I had flashbacks to NFIB v. Sebelius and Bostock. In both cases, rumors began to swirl that a conservative Justice was going to vote with the left. And, in both cases, there was a sustained public relations campaign on the right to shore up the wavering Justice. And, in neither case did those efforts work. I wrote about the Obamacare leaks in my first book, Unprecedented, and I wrote about potential leaks in Bostock here. Back to the present.
The WSJ editorial on Dobbs begins with a lengthy discussion of a "ferocious lobbying campaign." But there is nothing new here. Really, there is a hodgepodge of agitations from pro-choice groups. We are five months from oral arguments. Why write something now? As I read the first few paragraphs, I thought, okay they are setting up something far more important. Then we get to a section break with three asterisks. The editorial sketches out, at a very high level, what is going on behind the scenes.
All of this [i.e., the "ferocious lobbying campaign"] is aimed at swaying the Justices to step back from overturning Roe and Planned Parenthood v. Casey because the political backlash against the Court will be ferocious. The particular targets are Justices Barrett and Brett Kavanaugh, the two newest Justices.
Judging from the Dec. 1 oral argument in Dobbs, the three liberal Justices would bar the Mississippi law that bans abortion after 15 weeks as a violation of Roe and Casey. Justices Thomas, Neil Gorsuch and Samuel Alito are likely votes to sustain the law and overturn both precedents. Justices Kavanaugh and Barrett seemed, in their questioning, to side with the three conservatives.
Mind you, these are the judges on Trump's list that the WSJ assured us would never, ever vote to overrule Roe. But now we get to the antagonist of the piece:
But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn't violate Casey's test of whether there is an "undue burden" on the ability to obtain an abortion.
For reasons discussed on this blog and elsewhere, such a ruling would be pure sophistry. Anyone who joins such an opinion should hide their head in an N95 paper bag. But for the Chief, law no longer matters. Once you swallow the blue pill, and hold that a penalty is a tax, there is no escaping the bottomless pit.
Yet, the WSJ is worried that Roberts may "turn" one of his newest colleagues:
If [Roberts] pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can't, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.
The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That's what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.
Roberts "may" be trying to turn "another" (singular) Justice now? What do you say, WSJ? This seems like very, very specific information. Has there been a leak? And which (singular) colleague is Roberts trying to turn?
The Journal concludes:
We hope [Roberts] doesn't succeed—for the good of the Court and the country. The Chief's middle ground might be explainable with some legal dexterity, but it would prolong the Court's abortion agony. Critics on the left would still lambaste the Court for letting Mississippi's law stand. And states would soon pass more laws with even narrower restrictions that would eventually force the Justices to overturn Roe and Casey or say the precedents stand on solid ground.
. . . .
This is how the American system is supposed to work, as the late Justice Antonin Scalia often wrote. After a series of elections, abortion law will sort itself out democratically. That had started to happen before the Supreme Court intervened in Roe, embittering the abortion debate and damaging the Court.
In Dobbs the Court can say that such a profound moral question should be decided by the people, not by nine unelected judges.
Since Dobbs was argued, I have been waiting for this sort of editorial in the Journal. Indeed, at an event last week, someone asked me about Dobbs. I said something to the effect of, "everything is quiet now, and I haven't seen any evidence of leaks." Now we have evidence. If there are other similar pieces in National Review and related outlets, we can have more faith that knowledge has leaked out.
Perhaps I am over-reacting. I've done it before. But the Bostock and NFIB flashbacks are quite strong now. There is still plenty of time between now and the end of June. Indeed, we are somewhat ahead of schedule. The leaks from NFIB began at the end of May.