The Volokh Conspiracy

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Janus and Dobbs

The leaked opinion places the public "on notice . . . regarding this Court’s misgivings about" Roe.


In Janus v. AFSCME (2018), the Supreme Court overruled Abood v. Detroit Bd. of Ed. (1977). Justice Alito's majority opinion ruled that the principles of stare decisis did not justify retaining Abood. One aspect of his decision has some relevance for the present moment. In Janus, Justice Alito addressed reliance interests. Specifically, he wrote that the unions should have been on notice that Abood was on the chopping block. After all, recent decisions like KnoxHarris, and (in a way) Friedrichs chipped away at Abood.

Justice Alito wrote:

For another, Abood does not provide "a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced." South Dakota v. Wayfair, Inc.ante, at 20; see supra, at 38–41.

This is especially so because public-sector unions have been on notice for years regarding this Court's misgivings about Abood. In Knox, decided in 2012, we described Abood as a First Amendment "anomaly." 567 U. S., at 311. Two years later in Harris, we were asked to overrule Abood, and while we found it unnecessary to take that step, we cataloged Abood's many weaknesses. In 2015, we granted a petition for certiorari asking us to review a decision that sustained an agency-fee arrangement under AboodFriedrichs v. California Teachers Assn., 576 U. S. ___. After exhaustive briefing and argument on the question whether Abood should be overruled, we affirmed the decision below by an equally divided vote. 578 U. S. ___ (2016) (per curiam). During this period of time, any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain.

This passage from Janus, which does not appear in Justice Alito's draft opinion, does have some relevance for Dobbs. (And remember, the Chief Justice assigned Alito to write Dobbs.) In 2020, June Medical placed everyone on notice that five members of the Supreme Court had "misgivings" about Roe. Justice Barrett's confirmation no doubt expanded those "misgivings." And now, in light of the leaked opinion, we know that five members of the Supreme Court were willing to overrule Roe altogether. In light of Janus, those who facilitate abortion should understand that their potential constitutional defenses are "uncertain."

Seth Barrett Tillman, my frequent co-author, makes this point on a different level. He writes that in-house counsel now have a duty to provide timely legal advice in light of the leaked draft opinion.

The leak of the draft Supreme Court opinion in Dobbs v. Jackson Women's Health Organization did not overrule Roe. But counsel cannot blind him/herself to what the whole world now knows—that there is a substantial likelihood that Roe will be overturned. . . . More importantly, counsel should also put their clients on notice in regard to the risk of retrospective liability for acts committed while Roe was still in effect. The period of time we are now in may be such a period, particularly as the Dobbs leak has warned one-and-all of likely legal change. . . . In these circumstances, counsel should forewarn clients that their continuing to provide all or some abortion services going forward might lead to liability or, more likely, additional liability—civil and/or criminal—in states that have enacted statutes restricting the provision of abortion services.

We are all on notice.

NEXT: D.C. Police Department Allegedly Has Policy of Delaying/Denying FOIA Requests That May Lead to Criticism

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  1. "In 2020, June Medical placed everyone on notice that five members of the Supreme Court had "misgivings" about Abood. "

    Considering June was decided years after Abood that's interesting.

    1. Time spent on proofreading is that could be spent shitting out more hot takes.

      1. Speaking of which . . .

    2. I think you mean that June Medical was decided after Janus (which overruled Abood). It would not be particularly unusual for a later case to have misgivings about an earlier one.

    3. Yeah, that was a pretty obvious typo. June Medical (2020) put everyone on notice of misgivings about Roe.

      But you lose your internet points for finding it by making your own obvious typo in the reply. June decided after Abood (or Roe) is not interesting at all. June decided after Janus would have been interesting (if the original typo had been real).

    4. I guess the abortion providers in June Medical were unionized.

  2. I would hope at least that "no ex post facto laws" would prevent a prosecution for past abortions even though the literal meaning (a statute) would not apply.

  3. Sure. There could be an actual analysis of the issue. You know, citing Rodriguez ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.") or any of the great deal of scholarship around anticipatory overruling, stare decisis, and the weird statement from Alito.

    Then, if you did that, you'd actually see that what Alito was addressing was a specific component of the test- the reliance interests, and Alito was saying that there shouldn't have been great reliance interests because of repeated signaling (which is certain ... well, it's a take, but let's leave that aside for now).

    If you bothered doing even that base amount of work (which wasn't done) ... you'd still have to explain how this VERY SPECIFIC STATEMENT related to reliance interests becomes a catch-all for NOTICE. Because, by its very terms, Alito's prior language is inapplicable.


    1. i gave up asking this months ago. eugene has gone full clickbait material under the rationalization that he's letting in "all voices" and somehow supporting free speech by letting doofuses have a seat at the table. or something.


      To vex and annoy you of course.

  4. Some states are subject to court orders against enforcement of abortion laws. The injunction does not automatically dissolve when the Supreme Court changes its mind. The state must ask the trial court to modify it. If I were a District Court judge in that position I would look for a way to lift the injunction prospectively only, barring prosecution or other punishment for abortions done when everybody thought they were legal.

    1. Perhaps we're entering a new phase in American jurisprudence where you can be convicted because you should have known what the law was going to be...

  5. Is "retrospective liability" legal? Why don't the same principles that preclude retroactive criminalization apply here?

  6. Similarly, those who support and intend to rely on Dobbs are already on notice that mainstream America has severe misgivings about Dobbs and that Dobbs' lifespan is likely to be attenuated.

    See you down the road apiece, Dobbs fans.

    1. Do you say "Birthing People's Rights" when talking about this issue or "Women's Rights"?

      If it's the latter, why?

      1. Are you a genuine Klan member, or just an all-talk wannabe switching between the Volokh Conspiracy and 4chan, trying to avoid modern America and the reality-based world?

        1. lol you say "Women's Rights", erasing all the trannies.


  7. "And remember, the Chief Justice assigned Alito to write Dobbs"

    I'm not an attorney, but from some distant Junior High School civics class I seem to remember that the Chief Justice assigns who writes the opinion if the Chief Justice is in the majority, if the Chief Justice is not in the majority, my memory is the decision about who writes the opinion falls upon the senior Justice who is in the majority, (which would be Thomas)?

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