The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last night, I flagged a possible path forward for the Court in Dobbs:
For all we know, the Court issues a one sentence per curiam opinion overruling Roe, and remanding the case to the Fifth Circuit for further proceedings.
I think there is some precedent for this path.
Ex Parte Quirin considered the validity of a military prosecutions against eight Nazi saboteurs (one of whom was a U.S. Citizen). The Supreme Court heard oral argument on July 29 and 30, 1942. But by that point, the outcome was already preordained. The Germans would be executed. And the Justices knew this outcome.
On July 31, 1942, the Court issued a short per curiam opinion upholding the military tribunal. Nearly three months later, on October 29, 1942, Chief Justice Stone issued a fully-developed majority opinion. But by that point, the saboteurs were already executed.
Whether this is a valid precedent, or not, I will let others judge. Justice Scalia criticized the ruling in his Hamdi dissent:
The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U.S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U.S. citizen. The case was not this Court's finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded, see id., at 18—19, unnumbered note; a week later the Government carried out the commission's death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later.
But Quirin does provide a roadmap.
The Court could issue a brief per curiam opinion stating that Roe and Casey are overruled, and that abortion restrictions should be reviewed with rational basis scrutiny. And at the end of June, the Court could issue a formal opinion. This move will allow the Court, as the Chief Justice maintained, to complete its work.
BREAKING: Roberts confirms authenticity of draft Dobbs opinion, says it doesn't represent anyone's final position. He has directed Supreme Court marshal to investigate. "The work of the Court will not be affected in any way." pic.twitter.com/XuTEjZbU2M
— Greg Stohr (@GregStohr) May 3, 2022