The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I continue to be amazed by what is being described as the "political firestorm" that has been ignited by the leak of Justice Alito's draft majority opinion in Dobbs. Let me try to state my conclusions a little more clearly than I did in my posting from a couple of days ago.
Let's go back to, say, April 30th. Pre-leak. We, the public, are in a state of uncertainty regarding the disposition of the Dobbs case. Not total uncertainty, to be sure; there was plenty of uncertainty-reducing information already out there, mostly in the form of the Justices' prior writings in prior cases (and elsewhere) about the issues presented in the case. None of us knew with certainty what the Court was going to do, but we all could rationally and reasonably survey the landscape and come up with probabilities connected to any number of possible outcomes.
So, if you had asked me, on April 30th, about my assessment of the likelihoods of various outcomes, I would have given you something like the following answers:
- The Court upholds the Mississippi abortion statute. I think I (and most observers) would have assigned this a probability of somewhere around 80 or 90 percent.
- Justice Alito is one of the Justices voting to uphold the Mississippi statute. 99.8%
- Justice Alito supports overruling Roe and Casey in order to reach (2). 99.7%
Your own estimates might have differed – though I doubt by very much.
We now know, thanks to the leak, that all three of these possible outcomes have indeed come to pass. The Court is going to uphold the statute, Justice Alito is in the majority on that question, and he wants to overturn Roe and Casey. Our prior uncertainty about those three outcomes has been eliminated.
That's news, but it ain't big news, because there wasn't a whole lot of uncertainty surrounding those outcomes to begin with. It's surely not firestorm-inciting news.
The firestorm, of course, is not about any of these outcomes; it's about this one:
4. A majority of the Court – five (or more) Justices – join an opinion overruling Roe and Casey.
If the leaked document gave us some information relevant to that outcome, I can certainly understand why everyone would get worked up about that.
But it doesn't give us any information at all that is relevant to that outcome. However one might have assessed, on April 30th, the likelihood of the occurrence of that outcome – personally, I would have pegged it at around 50 or 60% – it is precisely the same today as it was on April 30th. The leak, in short, has told us nothing about the likelihood that that outcome will be reached; it has given us no uncertainty-reducing information in regard to that outcome. On April 30th we already knew, to a virtual certainty, Justice Alito's position on overturning Roe and Casey, and we knew that if he could join with four other Justices those prior cases would be overruled. And that's precisely where we are today. We know no more, or less, about the likelihood of (4) than we did pre-leak.
**Sticklers may object to this as a (slight) overstatement. It's true that the leak moves the needle on Justice Alito's position, from 99.97% to 1. So it is more precise to say that the information content in the leak in regard to (4) is "infinitesimally small," though not zero.
This appears to be widely, or even universally, misunderstood. Starting with the the original Politico story – "Supreme Court has voted to overturn abortion rights, draft opinion shows" – and continuing with an avalanche of stories along the lines of "Now that the Court appears more likely to strike down Roe v. Wade" or "Given the Court's apparent inclination to overturn …" and the like.
One of innumerable examples, from the lead editorial in today's New York Times:
"Many who oppose Roe v. Wade today, and even some who support it, argue that the 1973 ruling short-circuited a running debate on abortion, a debate that should have been allowed to play out in the states. This is one of the main justifications in the leaked draft opinion in which a majority of Supreme Court justices appear ready to overturn Roe and Planned Parenthood v. Casey." (emphasis added)
Nonsense. A "majority of Supreme Court justices" do not "appear ready" to overturn Roe and Casey "in the leaked draft opinion." The leaked draft opinion shows us that Justice Alito is ready to do so – nothing more and nothing less than that. The Court may indeed be ready to overturn those cases; but the leaked draft tells us absolutely nothing about the likelihood that it will do so. The public debate would be much enriched were everyone to realize that.
* * * * * * * * * * * *
One tangential note. For 30 years or so (see, e.g., here, here, and here, and references therein) I have been fascinated by the paradoxes and other difficulties that arise from the prevalence of "outcome-voting" in multi-member appellate courts (including the Supreme Court). Outcome-voting refers to the practice of disposing of cases by tallying up the votes of each judge regarding that judge's preferred outcome (Mississippi wins/Dobbs wins) and awarding the judgment to the party obtaining a majority of the votes. Paradoxes and problems arise because courts simultaneously apply an "issue-voting" algorithm to determine the proposition(s) of law for which the case stands; that is, the question of whether the Court overturns or upholds Roe/Casey depends on a separate tally of the views of the justices, as expressed in the accompanying opinion(s), on that question.
The Dobbs case, and the kerfuffle surrounding the leaked draft, illustrate some of the problems that can arise. Consider this, as an illustrative (but entirely hypothetical) scenario:
(a) The Court declares that Mississippi wins, 6 – 3: (Roberts/Thomas/Alito/Gorsuch/Kavanaugh/Barrett) to (Breyer, Sotomayor, Kagan).
(b) On the issues, the Court declares that (1) the Mississippi statute violates the principles set forth in Roe/Casey, AND (2) that Roe and Casey are still binding precedents. The breakdown could look like this:
Does MI Statute Violate Roe/Casey? Overturn Roe/Casey?
Roberts No No
Thomas Yes Yes
Breyer Yes No
Alito Yes Yes
Sotomayor Yes No
Kagan Yes No
Gorsuch Yes Yes
Kavanaugh No No
Barrett Yes Yes
______________________________________________________________________ YES (7-2) NO (5-4)
In short, Mississippi can prevail even though "the Court," speaking through a majority of the Justices, holds that (1) the statute violates the rules enunciated in Roe and Casey, and (2) Roe and Casey remain good law – which, one would think, would lead the Court to conclude that the Dobbs challengers should prevail. [What happens, you might ask yourself, if Alabama subsequently passes a statute identical to Mississippi's? Wouldn't the Court have to strike it down, given its holdings (1) and (2)? But isn't that inconsistent with the ruling that Mississippi's identical statute is constitutional?]
It's a very curious bug in the system by which cases are decided, and it may well be played out in the Dobbs case.