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Abortion

Further Thoughts on the Dobbs Leak

There is much, much less in the leaked draft than meets the eye

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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:

  1. 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.
  2. Justice Alito is one of the Justices voting to uphold the Mississippi statute. 99.8%
  3. 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.

 

NEXT: Some More on Expert Witnesses in Libel Lawsuits

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  1. Your table uses MI as the state abbreviation, but it is MS, assuming we’re still discussing Mississippi.

    1. Dobbs is a small restoration of the law, after it was egregiously violated in 1973. Why does it take so long to correct mistakes by the lawyer hierarchy? Because we have to wiat for all of them to die by natural causes.

      Why not accelerate the process and get more quicker correction? Arrest the hierarchy for insurrection against the constitution, try them, and execute them every 20 years, right in the court basement. Repeat, to deter.

      1. The leak is also a small restoration to normalcy. Those deliberations are paid for by the taxpayer. They are not military secrets. Every nook and cranny of the Supreme Court should be livestreamed, including the conferences at the urinals. No secret lawmaking.

    1. I'll alert the media.

  2. What information is provided by Alito being assigned the opinion and the indications that the Chief is trying to pick off votes for a compromise that upholds Roe. Did he vote with majority and assign to Alito knowing what he would write? Or was it assigned by Thomas?

    1. Most defensible seems to be the Chief Justice was not one of the 5-vote majority to agree with Mississippi's position, which itself is somewhat ambigious. Their original brief was to overule Roe only so far as its 20-week pre-viability line, asking for a 15-week line instead.

      During auguments, however, Mississippi acknowledged they now support a position of overuling Roe in its entirity if the Court so chooses. And that's what Alito's Feb 10 circulated draft does.

      So, does Chief Justice Roberts reject Mississippi position #1 (State can ban after 15 weeks), or #2 (State can fully ban)?

      Most likely is that in conference, five Justices favored a full ban. Roberts was not willing to concur with that majority, meaning senior Justice in the majority (Thomas) assigned the Justice with the most extreme position (Alito) to write the opinion.

      Plus, my guess is Roberts is trying to cobble together a majority of himself, Breyer and Kagen, plus Kavanaugh and either Coney Barrett or Sotomayor, ruling for Missippi's original pleading (15-week ban, breaking but not destroying Roe), which would leave its late June release as a complete anticlimax.

      Makes sense?

      1. I cannot imagine he can get any of Kagan/Breyer/Sotomayor to accept the Mississippi law. Most plausible is either

        1) 5 overturn R/C, 1 keep R/C but approve MS law, 3 reject MS law.
        2) 4 overturn R/C, 2 keep R/C but approve MS law, 3 reject MS law.

        1. If (2) turns out to be the final disposition, the result would be that the Mississippi statute would be upheld, but the holding of the Court would be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. Marks v. United States, 430 U.S. 188, 193 (1977), citing Gregg v. Georgia, 428 U. S. 153, 428 U. S. 169 n. 15 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.).

          Under that scenario, Roe and Casey would remain precedential decisions.

  3. Interesting they think the 7-2 MS law violates Roe. Was hoping some insight in why. It doesn't outlaw abortion and in the year 2022 vs 1972 the age of viability is getting shorter and shorter.

    I think one of the squishes (Kavanaugh/Barrett) or both will cave and not take down Roe. They may flip and still allow the MS law.

    They could uphold MS law and just stay silent on Roe. We'll keep repeating these cycles.

    1. The 7 agree that a categorical 15-week ban is an undue burden in violation of Casey.

    2. I shouldn’t be an optimist, but I’m going to say that the 5-justice majority for overturning Roe/Casey will (finally) hold. But I still have painful flashbacks to that June morning when the Obamacare decision came out. That was still in Drudge’s glory days, and the Drudge siren first stated that the Court have overturned the ACA (because the immediate reports had only gotten through the part of the opinion or opinion summary that dealt with the Chief’s ruling on the commerce clause issue). So a bit of elation, and then seconds later everything flipped, lol.

      1. Does Nick Gillespie know that his jacket is an authoritarian member of Libertarians For Statist Womb Management?

        Does he care?

        (John next demonstrates how to launch a movie soundtrack.)

        1. How much do any of us know about our clothes’ ideologies and political preferences? For all you know, the Rolling Stones’ lips and tongue logo could be the president of the Enoch Powell fan club. We can choose our clothes, but we can’t control their jurisprudence.

      2. Worst case is that a squish (Kavanaugh or Barrett) flips. And MS gets tossed and Roe stays

        Roe is ridiculous. There is absolutely nothing in the constitution regarding abortion.

        Which then via 10A goes back to the states

    3. "in the year 2022 vs 1972 the age of viability is getting shorter and shorter."

      The gestational period for viability in 1973 was about 24 weeks.
      The gestational period for viability in 2022 is about 24 weeks.

      Those were/are the medically accepted standards. The issue you raise might be that a baby delivered at 22-23 weeks had a lower chance of survival than a baby delivered in 2022 at 22-23 weeks, but the rate of survival without significant health problems is still very low. "Viability" is a statistical concept, not an either/or one.

      1. "without significant health problems" is a significant restriction on your statistics.

        What is the rate of survivability without any restriction?

      2. There are 20 week premature births who are now healthy adults, which there are no records of happening before the 2000, so there is good evidence that viability has pushed back.

        In addition, a quick check shows that survival rates have gone up for all time periods, so even if you want to claim that "viability" does not refer to the individual in question but to some abstract 'average' entity, the distribution has clearly shifted to the left.

        1. You are correct. I wish folks would hold off on their expert yet false medical opinions

        2. "There are 20 week premature births who are now healthy adults,"

          You might want to document that. As recently as a couple of years ago the 'youngest' survivor of premature birth was a 21 week child -- Lyla is famous in medicine, and such an anomaly that her case should not be used to set policy or law, I would think.

          Yes, my point was that survival is a rate, even at the generally accepted cut-off of "viability" at 23-24 weeks. And even at that, survival is less than 50%. The question is what rate is a reasonable cut-off for public policy? The issues of abortion are generally couched in moral/religious terms, but it might be worth noting that the financial cost of a delivery at 23 weeks is immense, and since the outcome is likely to be poor, there might be a reasonable public policy discussion about the costs and benefits. I remember a case when I was in medical school of an infant who had two liver transplants before finally dying , and the mother was handed a bill for about $500,000 -- it would be considerably more today -- which she chose to ignore. Her baby's case had made the national news, and generated more than that in donations, but her argument, which a court ultimately upheld, was that she did not solicit those donations, and did not solicit money to cover the costs of treatment of her child. She bought a condo. Imagine the public outcry if medicaid funds were spent trying to save premees at 23 weeks, unsuccessfully, at a cost a million bucks a pop.

  4. I do not understand how Alito got assigned the opinion.

    If the only vote at conference was 6-3 to uphold the statute, I would think Roberts would assign the opinion to himself. If they took further votes on the reasoning as posited by David in his table, then Alito was assigned to write a plurality opinion that would not have precedential value. Does that make sense? If not, then maybe we can conclude there were 5 votes to overturn Roe/Casey at conference.

    1. This seems like the key flaw in Post's view.

      He asserts "[t]he leaked draft opinion shows us that Justice Alito is ready to do so - nothing more and nothing less than that," but it is very unclear why that would be so. It presumes that Alito would write 100 pages of majority opinion overruling Roe -- literally the biggest jurisprudential event in decades -- and that he would do so without knowing that four other Justices were willing to do so. I think that's wildly unlikely.

      I suspect that the conference vote included enough rational explanation by the Justices to indicate that five were in favor of striking Roe. But it ultimately doesn't matter whether Alito figured out that he had five votes a week later, or whether he was even the original designated author (or became the majority opinion author after the Chief realized he couldn't get five votes for his blended position). What matters is that by February, Alito believed that he had five votes to overrule Roe -- and that's surely significant.

      Because the alternative view (Post's apparent view) is that Alito just went off and wrote 100 pages without checking on that. That seems willfully blind.

      1. You don't seem to consider that Alito may have drafted the opinion to persuade four justices who agreed with the narrow holding to also overturn Roe/Casey.

  5. Is this right though? I guess my question is whether, during the Friday conference, the justices simply vote “affirm” or “reverse,” or would they say “affirm, but not overrule Roe/Casey” or “affirm and overrule Roe/Casey”? If the latter, through the leaks and opinion assignment I think we’d have more information than “no information” re: the likelihood of the court overturning Roe/Casey.

    PLUS, if the WSJ was editorializing that the Chief was trying to pick off Kavanaugh or Barrett for a middle outcome based on a leak, that gives us information that the likelihood of a majority being willing to overturn Roe/Casey is greater than we could have known on the date of oral argument. Likewise, the Politico leak story stated that as of the reporting, the 5-justice conservative majority was sticking together.

    So while votes can change and no outcome is certain until the decision is issued, I don’t understand why Post is stating that we have NO more information or certainty about a particular outcome than we did before the leaks.

    1. The Politico story said:

      A person familiar with the court’s deliberations said that four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.

      That sounds like a vote specifically on Roe/Casey with Thomas assigning Alito the opinion, and that's a lot of information from the leak.

      1. I think the key detail is that the initial vote was just on outcome, not reasoning.

        Whether the reasoning has been accepted cannot be determined based on the available info.

        1. Perhaps, but why didn't Roberts assign himself the opinion if the only vote was the outcome (I find it hard to believe that Roberts voted to strike down the law)?

          1. Perhaps Roberts did assign himself the opinion, but that doesn't necessarily make it the Court's majority opinion. If four other Justices explicitly join Alito's opinion, and nobody joins Roberts' opinion, then Alito's opinion is the opinion of the Court. Even if both opinions point to the same result in the case.

            Alito's perfectly entitled to draft an "Opinion of the Court" if he's confident that he's got 4 joiners.

            FWIW if the famous five are fairly solid behind Alito, I would say Roe's best chance is if Roberts can persuade the three liberals that Mississippi should win - for whatever half-assed reason he can think up. If Roberts could deliver three liberal votes towards a 9-0 result, a politiican like Kavanaugh would be strongly tempted to go for that. Oil, troubled waters, and so on. And then Roberts would have 5 for his split-the-baby opinion. Wouldn't matter if Alito, Thomas, Gorsuch and Barrett concurred, indicating that they would have favored the death of Roe.

            1. "Alito's perfectly entitled to draft an "Opinion of the Court" if he's confident that he's got 4 joiners."

              As I understand it, the senior justice in the majority (in this case either Roberts or Thomas) decides who will write the opinion of the court.

              1. That presupposes that there is an opinion of the Court -- five justices in agreement as to the result and the supporting rationale. If five or more agree as to the result, but fewer than five agree on a supporting rationale, there is no opinion of the Court.

  6. I still wonder if the leaked opinion was a long standing trial balloon.

    1. What's a long standing trial balloon?

  7. On this Kentucky Derby day, perhaps David Post (and others) might handicap the prospects that

    (1) the Supreme Court will be enlarged during or before 2029;

    (2) the Dobbs decision is retired before Juan Soto retires;

    and

    (3) the Dobbs decision survives half as long as Roe v. Wade?

    My ticket:

    (1) 70 percent

    (2) 65 percent

    (3) 15 percent

    (If there is a god, that god's name is Mick Taylor. No other would be fit to lay a finger on his fretboard.

    To see a genuine Second Coming, catch the "From the Vault -- The Marquee -- Live in 1971" recording of this one on Youtube.)

    1. I share your general view of these outcomes, but not the time frame. I think it is more likely Democrats recapture (after initially losing) control of the Senate (and House) based in significant part on abortion rights (turnabout being fair play). I think a post-Roe Democratically-controlled Congress is more likely to pass federal legislation protecting abortion than it is to expand the Supreme Court. And I don't think there will be sufficient retirements/deaths of Justices in the next 7 years to alter the majority.

      So, my predictions:

      1. 10 percent
      2. 15 percent
      3. 25 percent

      I think young women worried about being made a criminal if they choose not to carry a rapist's baby to term will, as it did in the 1970s, have a very clarifying effect on the minds of women and non-misogynist men who, until now, didn't really think there was a real danger of Roe being overturned, what with conservative appointees calling it a super-precedent or Casey precedent-on-precedent. I think there will be consequences at the ballot box when naivety/complacency runs into the cold hard reality of the games that have been played to take away women's freedom to control their bodies.

      1. What the draft opinion would accomplish if it turns out to be the final opinion is reduce the fetus viability from 24 weeks to 15 weeks in one single state. Already CA is making it clear that it will not only maintain it's very liberal abortion laws but make them even more liberal; something I am sure NY for starters and many other liberal states will do. I would bet some conservative states will follow MS example as well.

        The point is that if the draft opinion turns out to be the final opinion not much will change in liberal states and there may be some changes in red states and in red states where red pols sense reducing the fetus viability to 15 weeks may prove to be a problem to them they may leave things as they are.

        To a great extent I see Dobbs against Jackson Womens Health as a tempest in a teapot that at voting time will be mostly over shadowed by inflation, a crappy economy, the immigration mess made worse by stopping Title 42, the Ukraine war mess, and Hunter Biden's mess.

        1. What the draft opinion would accomplish if it turns out to be the final opinion is reduce the fetus viability from 24 weeks to 15 weeks in one single state.

          That is not what the draft opinion does. The draft opinion expressly overturns Roe v. Wade and Casey which means it declares that states are free to draft anti-abortion laws as they please with rational basis being the only restriction. While, in a very technical sense, all this decision does is uphold or overturn the Mississippi law at issue, what the draft opinion does (were it adopted by a majority) is much, much more drastic than simply upholding this one law. You're not being honest by pretending otherwise.

          there may be some changes in red states

          There will be major changes in red states. A number of red states will enact new laws prohibiting abortion (some entirely, possibly without exceptions for rape or incest). And, importantly, a number of red states already have anti-abortion laws on the books that provide for prohibitions if Roe is overturned, i.e, "trigger" laws.

          Thus, it is may, it is will, and 13 states have trigger laws meaning, those definitely go into effect and at least 12 more are expected to enact anti-abortion laws if Alito's draft opinion is adopted by a majority. That's half the states. Calling it some is dishonest. But you're known for not being an honest commenter.

          1. ugh, typo:

            Thus, it is not may, it is will. Moreover, 13 states have trigger laws meaning, those definitely go into effect and at least 12 more are expected to enact anti-abortion laws if Alito's draft opinion is adopted by a majority. That's half the states. Calling it "some" is dishonest. But you're known for not being an honest commenter. (And plenty of people who live in blue states travel to red states, go to college in red states, etc., and red states are attempting to apply their laws to people leaving the state to get abortions, so, no, it is not the case that the draft opinion "may" affect only "some" red states, but no one in blue states. It will affect most if not all red states and will affect people who live in blue states.

  8. I still go with the purpose of the leak being to get inflation off the 'front page'.
    Or the border crisis.
    Or Ukraine.
    Or interest rates.
    Or the stock market.
    Or the Ministry of Tuth.
    Or Musk.
    Or the attack on energy.
    or everything else real people worry about - - - - -

    1. That is correct, and it has worked. But people are not stupid, they vote on substance, not news.

      1. OK, then, tell me a story about 2020.

    2. The silver lining is that this white, male, conservative blog and its hyperactive-imagination fans may have finally moved on from birtherism!

  9. Thank you. Thank you. Thank you.

  10. Under Post's hypothetical, I think Mississippi ultimately loses on remand. In his scenario, the votes on the final judgment are 7 to reverse the 5th Circuit and 3 to affirm the 5th Circuit. So, the 5th Circuit's decision finding that the Mississippi law "is facially unconstitutional because it directly conflicts with Casey," is reversed, and the case remanded back to the Circuit Court for further proceedings. But the outcome at the Supreme Court wouldn't actually change anything.

    For simplicity purposes, I'll assume that three different opinions are written in Post's hypothetical:

    Roberts writes an opinion that the Mississippi statute (1) does not violate Roe and Casey, (2) Roe and Casey should not be overruled, and (3) the judgment should be reversed. Kavanaugh joins the opinion in full.

    Breyer writes an opinion stating that (1) the statute does violate Roe and Casey, concurs with part (2) of the Roberts opinion, and (3) judgment affirmed. Kagan and Sotomayor join the opinion in full.

    Alito authors a separate opinion, concurring with part (1) of Breyer's opinion, but writing separately to argue that (2) Roe and Casey should be overruled and concurring with the (3) final judgment of Roberts' opinion. Thomas, Gorsuch, and Barrett join in the opinion in full.

    So, the 5th Circuit's decision is reversed (7-2), but the case has to be remanded back to the 5th Circuit for further proceedings (not inconsistent with the Court's ruling). How does the 5th Circuit then decide the case? It counts the votes and applies the reasoning that garnered a majority of votes. 7 justices agreed that the statute violates Roe and Casey and 5 justices agreed that Roe and Casey are still applicable. So, the 5th Circuit once again affirms the District Court decision holding the statute unconstitutional. Mississippi again loses.

    1. In his scenario, the votes on the final judgment are 7 to reverse the 5th Circuit and 3 to affirm the 5th Circuit.

      This looks like Philadelphia or Chicago voting methodology. Do they do it that way at the Supreme Court ?

      1. A ruling striking down the law when SCOTUS voted 6-3 to uphold it strikes me as inconsistent.

    2. Yeah, that’s not how it works.

    3. Alito isn't going to concur in any part of Breyer's opinion. The Justices who argue that Roe/Casey should be struck down (and vote to that effect) aren't going to vote on whether the law violates Roe/Casey (there won't be any vote on that issue, because they vote on outcomes, not legal reasoning) and they aren't do any Roe/Casey analysis in any of their opinions.

      Post's chart was a hypothetical of the views they could have. And it is a legit exercise for the valid point he makes. But don't be confused, we'll never know whether anyone voting to strike down Roe believes the Mississippi law violates Roe/Casey, i.e., whether the paradox really came to pass.

  11. It's a very curious bug in the system by which cases are decided

    It's only a bug if you imagine that the object of the exercise is to set nice clear precedents for future cases. Whereas the actual object of the exercise, as set out in black and white in Article 3, is to decide who wins the particular case currently before them. Doesn't matter a if they all have different reasons for arriving at the answer that X wins.

    1. Under Marks v. United States, it very much matters if fewer than five justices are able to agree on the reasoning.

      1. It may matter for precedent purposes, but as I mentioned, setting precedents is a subsidiary and incidental effect of the Court doing its actual job, which is to decide the case before it. And for that, primary, constiutionally commanded, purpose it doesn't matter at all whether there's a majority for any particular rationale. What matters is the which litigant (if any) has the majority on its side.

        Consequently failing to set a coherent precedent is not a "bug" any more than the fact that the roof of my car is not perfectly flat, and so can sometimes allow a carelessly placed can of coke to slide off. It was not designed as a table to hold drinks, it was designed as a roof to keep the rain off. And the bugs out too, for that matter.

        1. Not precedent - lower courts adopting the finding.

          That is absolutely vital to how a case's impact is felt, since this will certainly be challenged in lots of ways.

  12. Post forgot to handicap alternatives to explain on what premises the leak might have happened.

    Post forgot to handicap alternatives about Alito being chosen the author.

    Post forgot to handicap the information that the Court acknowledged the content of the leak was valid.

    Post forgot to handicap considerations that Dobbs was about a law to restrict abortions to 15 weeks, but the draft goes beyond Dobbs to reach complete abolition.

    Post forgot, or did not notice, that Alito's unqualified case for the, "history and tradition," argument is a historical botch so outlandish it requires intellectual dishonesty to offer it—a fact which tells on behalf of the power of an alternative religious motive to determine the outcome among the Court's Catholic conservatives.

    Post did not look to question what explanation could collate and reconcile the various odds and questions raised by the issues above. Some subset of those estimates must cohere. How many alternatives among the possibilities do cohere, and which are they?

    Poker is a game of money management played under conditions of incomplete information. That puts a premium on full use of all the information and inferences the play of a deal makes available. Post could prove correct about this deal, but I would still welcome him as a poker opponent.

    1. Lathrop forgot Post is not running a wagering service.
      No "handicapping" is necessary.

  13. Meanwhile we all continue to wait, while CJ Roberts look under every stone for the leaker and Josh Blackman, David Post and the rest of the Reason team cause a shortage of digital ink with their speculations.

    If the final opinion (opinions) is written it should be released immediately.

    1. Problem with releasing the final opinion as quickly is that the dems want to drag it out to as close to the election as possible. Not to mention the sooner it is released the sooner folks will realize it is not that big a deal.

  14. We know the justice voted, a majority voted to uphold the statute, and that Alito was assigned the opinion.

    I believe that we can be reasonably certain that a majority exists to overturn Roe. If Roberts were in the majority, I am almost certain he would have assigned the opinion to himself, so he is almost certainly in the minority, leaving the only possible configuration to be Thomas, Alito, and the three Trump appointees as the majority. I can't believe that Alito would casually mention overruling Roe in an opinion without a reasonable assurance that the rest of the majority was on board.

    I can't see a ruling for Mississippi that also preserves Roe and Casey because those cases rest on the arbitrary line of "viability", and the 15 weeks in the statute obviously don't meet the standard of viability. The only way to preserve the statute and Roe would be to engage in legal sophistry by drawing some new arbitrary line, and the Court's only sophist is Roberts, who is not writing the opinion. Besides, there's no way the three liberal justices would join an opinion upholding the statute.

  15. You underestimate the influence of the leftwing media machine/Ministry of Truth. They control the majority or almost all the information reaching the brains of many people of lesser intelligence.

    Everytime there is a change that leftoids like the Ministry apparatus whirls up and inculcates the narrative that x change is a basic fundamental thing and it would be unthinkable for things to be any other way into the minds of these people.

    You see how people/media lost their heads about Trump rolling back immigration changes Obama had put in in the last minute as if they were centuries old amendments. RoevWade has been around for decades. For leftoids, its basically like gravity, and Alito just pushed the button causing buildings and people to float up in the air. Even with the furor as great as it is its surprising that it isn't even bigger. I suppose we can't really muster up much more than what is already a 24/7 outrage cycle or they're waiting for the full release or its taking some time to organize 'grass roots' crowds to really start the party.

    1. You underestimate the influence of the leftwing media machine/Ministry of Truth. They control the majority or almost all the information reaching the brains of many people of lesser intelligence.

      Which points to another possible leak motive (albeit one I doubt, but I'll put it on the table anyhow.) Suppose there are 5 pretty solid votes to reverse Roe, and a pro-life or righty clerk (by which I simply mean person in the know as to how things are) is concerned to minimise the effects of the explosion in the heads of the Ministers of Truth, and those members of the public who sporadically absorb their notions of reality from such sources.

      I don't mean specifically for the purpose of the November, but just as much, or more so, for the purpose of getting the public to accept the reversal of Roe. In a sort of modified (or even unmodified) limited hangout style. With the opinion trailed well in advance of its actual release, there's plenty of time for the Shock ! Horror ! reaction to dissipate a bit. Some members of the public, most of whom, according to polls, have a very limited idea of what the content of Roe actually is, may actually discover that nixing Roe and banning abortion nationwide, are different things.

      It's possible that someone concerned to gain public acceptance of the decision, may have decided simply to let some air out of the balloon, and prepare people for the news, giving time for the real implications to become known. To increase the number of people whose reaction to the eventual official release, is "oh, whatever"

      Not my favorite theory, but it's at least conceivable.

    2. "You underestimate the influence of the leftwing media machine/Ministry of Truth. They control the majority or almost all the information reaching the brains of many people of lesser intelligence."

      Until reality hits people in the head.

      The MSM has been tried to no avail to sweep inflation and gas prices under the rug but every time anyone drives to the store they are reminded that the Biden economy sucks big red donkey dicks. Every time a vid of Biden shaking hands with mid air or wandering around aimlessly airs folks are reminded he seems out of it. Every time he advances a silly policy like stopping Title 42 or creating a ministry of truth reality hits folks in the head.

  16. "Justice Alito delivered the opinion of the court."
    front page

    I mean if that isn't evidence that Justice Alito delivered the opinion of the court, I don't know what would be

    1. I mean him writing delivered the opinion of the court is entirely provisional. It's a draft--if 4 others join his opinion, only then does it mean he truly delivers the opinion of the court.

      I will note that it's still evidence insofar as it means this was a draft majority opinion, meaning he was assigned the opinion after conference, which is a big deal.

      I think the odds they didn't poll the "Overturning Roe and Casey" question in conference is next to zero. That means at conference, there were almost certainly 5 votes to overturn Roe because if the court had voted at conference to uphold MS statute but not overturn Roe, Alito wouldn't have gotten the opinion.

  17. What strikes me most about Justice Alito's draft opinion is the clear contradiction of citing Washington v. Glucksberg for the defining principle that the Due Process Clause of The Fourteenth Amendment requires rights not mentioned in The Constitution to be "deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty;” and subsequently suggesting that the rights of homosexual sodomy in Lawerence v. Texas, and same-sex marriage in Obergefell v. Hodges are not "undermine[d]" in any way by the same analysis. Obviously, they are undermined. In spades.

    Second, Justice Alito curiously avoids mentioning The Tenth Amendment by name, although he concludes his opinion with "The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives." He notably left out the part about "[t]he powers not delegated to the United States by the Constitution...", but held "We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision..." He might as well have added that being un-referenced, there is no power to regulate abortion delegated to the United States by the Constitution, but he avoided that unnecessary overkill. Justice Alito's relinquishment of abortion jurisdiction to "the people and their elected representatives" (i.e., "to the states respectively, or to the people"), is clearly based on the Tenth Amendment. He is obviously opening that potentially volcanic can of whoop-ass while trying to be as opaque about it as possible. Which is to say, not very.

    Finally, Justice Alito only mentioned Griswold v. Connecticut in passing instead of reviewing its imagined "emanations" and "penumbras" as the basis of its egregiously fabricated holding and the constitutionally flawed precedent of all of the subsequent "right of privacy" cases mentioned in Roe and Casey. Apparently, Justice Alito chose to pick off Roe and Casey, and leave The Court to work its way back to the source one step at a time, instead of overruling Griswold and having all of its add-on emanations collapse at once. Un-sticking the Band-Aid incrementally over time as opposed to ripping it off quickly and having it over with. I'm guessing John Roberts is in the first camp at best, or maybe just for leaving it on until it rots off.

    I don't imagine that Justice Alito dodged, dissembled, and obfuscated this robustly unless it was necessary to build a majority with flimsy political cover. For that reason, I suspect that he had been successful, at least up to the leak. One thing is for sure. His opinion is hugely damaging to Roe and Casey, whether it becomes the final opinion of The Court or not. Now that it's out there, it cannot be un-read. Roe and Casey will never be accepted as legitimate constitutional law by the conservative half of the country after this. Beyond that, Justice Alito has lit a Tenth Amendment fuse in this opinion that may signal his willingness to start rolling back Congress' accumulated unconstitutional encroachments on states' rights. Wouldn't that be fun?

    1. "Rights not mentioned in the constitution being deeply rooted" means we want to invent a right that we could never get an amendment passed on,

      We want 9 robes to amend the constitution, Is women right to vote "deeply rooted". It needed an amendment

      Its BS language

    2. "Roe and Casey will never be accepted as legitimate constitutional law by the conservative half of the country after this."

      A friendly comment/correction. The conservative portion of the U.S. is about 35%. It would be more accurate to write "...the conservative third of the country...."

      E.g. https://news.gallup.com/poll/328367/americans-political-ideology-held-steady-2020.aspx

      1. Well then creating an actual right by amendment to the constitution should be no big deal

        1. 35% is more than 33%. Plus, even if 65% prefer upholding Roe and see it as legitimate, it doesn't mean 65% would support a constitutional amendment. Moreover, and importantly, constitutional amendments aren't subject to a nationwide referendum, so there are plenty of ways and reasons an amendment preferred by even 75% of Americans would still never pass. it requires two thirds of states or two thirds vote of both houses of Congress. Out of 50 states, you just need 17 states to object. The populace of several of the 17 could even support a Roe amendment by 51-49, but their elected Senators could still vote against it.

          The reality is that it takes far more than 66% of the populace to support a constitutional amendment to get a constitutional amendment. Given anti-choice conservatives make up somewhere around 35% of the populace, it would be virtually impossible to get the amendment until those numbers shift. And probably they will, eventually.

          1. And to be clear, the 2/3 majority is required to propose the amendment. Then it has to be ratified by 3/4 of the state legislatures or 3/4 of the states at a constitutional convention. So 35% opposition is almost certainly enough to defeat a constitutional amendment.

    3. Alito's suggestion that this opinion affects only abortion rights is as meaningless as then-Judge Kavanaugh's confirmation hearing testimony that Roe v. Wade is settled law.

  18. P(R) = P(R|M)*P(M) + P(R|not M)*P(not M)

    One's estimate of the chances of Roe being overturned should actually be higher now than pre-leak, assuming both (1) the odds of the MS statute being upheld are higher now than pre-leak, & (2) the probability that Roe is overturned given the MS law is upheld is greater than the probability of Roe overturned given MS law not upheld.

    The author grants (1) and I doubt (2) is controversial.

    Based on the numbers he used, I think his estimate of Roe being overturned should have increased about 10% after the leak.

  19. Wha?
    Of course the release of the draft makes a difference on the assessment of the results of the decision.
    It is ridiculous to say we are in the same Bayesian condition of likelihood of the decision's outcome.
    Furthermore, I would say releasing it, and the public responses to it, cements its likelihood of staying the same as the draft.

    1. It is ridiculous to say we are in the same Bayesian condition of likelihood of the decision's outcome.

      Of course.

      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.

      Why does it not give us any information? Let's suppose that only Alito himself supported that outcome. Would this have been written? I'm no expert on SCOTUS procedures but I think not. Yes, someone might change their mind or some thing, but at one point there were five, or maybe 4 3/4, votes to overturn Roe.

      Another point. We have to consider not just the draft, but also the fact that it was leaked. If the leaker is a court insider then he/she knows something about the positions of the Justices. Whatever the motive, would someone have taken the considerable risk unless they thought was crucial to get the draft out. I suspect that what they know is either that the draft is pretty close to the final decision or that there are one or two wavering Justices. In either case I think Post's statement is wrong.

  20. It may be time for churches rooted in reason and progress rather than in superstition and old-timey bigotry to begin declaring reasonable access to abortion to be sacred, and interference with that sacrament to constitute grave evil.

    Where does it say religion must be based on childish superstition, or include silly dogma, or include a requirement to claim to believe that fictional stories are true?

    Where does it say a religion must precipitate bigotry toward gays, or misogynistic treatment of women, or hypocritical riches and severe criminal conduct?

    Maybe smart, educated, reasoning Americans residing in modern, educated, successful communities should offer religions that compete with criminal Catholics, racist evangelicals, silly Scientologists, homophobic evangelicals, Netanyahu-muzzling right-wing Jews, misogynistic evangelicals, entertaining Satanists, and xenophobic evangelicals.

    A set of sacraments involving marijuana and other recreational drugs; reproductive liberty; relentless opposition to bigots and bigotry; science; progress; and a pro-life agenda (reasonable gun safety practices, school lunches, sound public education for every child, mandatory vaccinations) could be quite popular, especially in advanced, modern, reality-based communities.

    1. Preach it, Reverend. Where do I sign up? Because, yeah, I don't think only the superstitious should get exemptions from laws they don't like.

  21. This is a poor analysis, since we also know that Alito was assigned the opinion. Roberts wouldn’t have assigned it to him unless Roberts wanted to overrule Roe/Casey, because he knows Alito does. So it was almost certainly Thomas who did the assigning, meaning Roberts didn’t vote with the majority. Which tells you a lot more than Post lets on. It doesn’t mean things won’t change, but you can be confident that, when it was written, there were five votes in favor of overruling.

    1. I think you're still assuming a lot. For all we know, there was Alito wanting to uphold and overrule Roe, and Roberts who wanted to uphold and not overrule Roe, and four judges in various places between those two poles. So Roberts and Alito each took a stab at a draft opinion to convince the other four, or maybe even catch Breyer, Kagan, or Sotomayor who presumably voted not to uphold the law. I think Post is correct, we know much less than most media are reporting.

  22. It is significant that the leaked draft is controversial, but that the following statement is not at all controversial: "The Supreme Court, in every case, is looking at individual regulations of the government related to individual rights and I am not aware of the court having made a pronouncement about whether or not regulation can extend all the way up until birth. It’s because the court is looking at individual cases and making its rulings in the context of individual cases and not making sort of pronouncements in general." [Justice Brown]

    Perhaps we will ultimately have proof that WaPo column-inches -- blows from the Bezos Bugle, summoning the Pelosian herd -- do not influence Supreme Court opinions. If Roe is now upheld, such proof will be absent and perhaps we should gather as 34 state legislatures to discuss the matter further.

  23. I agree with Professor Post that we all knew Alito would vote to overturn Roe and knowing an opinion is from Alito means a near-100% chance it will call for Roe to be overturned.

    What we didn’t know is that Alito, and not Roberts, would be tasked with drafting the majority opinion. There was by no means close to a 100% chance of that. Maybe more than 50%, maybe not. So knowing it is Alito drafting a majority opinion - that information alone - is huge news and radically changes things.

    1. Except we don't know if the leaked draft actually is a majority opinion, or just a first attempt at forming a majority opinion. Or if something in the leaked draft changed another justice's opinion and now there is a different majority. I agree your assessment is the most likely, but not the only possibility.

  24. I don't understand why there's anything in the column for "Does MS law violate Roe/Casey" for those Justices that say "overturn Roe/Casey"?

    If they believe that Roe/Casey is not the correct way to evaluate constitutional claims then they don't need to have any opinion on the former. If asked, they should just say "I don't think R/C is correct, I have no opinion on whether the law violates a rule that I don't think is even in the constitution" or, if for brevity, "mu".

    1. The constitution requires judges to decide the case before them and prohibits them from deciding anything not necessary to decide that case. This requires proceeding in the exact opposite of the way you propose. They must first decide whether the Mississippi law is consistent with Roe and Casey. If it is, they have no authority to an express an opinion about whether they agree with Roe and Casey or not.

      Judges are require to first decide whether the law is consistent with existing precedents. The question of whether precedents should be overturned only arises in cases where it isn’t consistent.

  25. Nearly all countries in the entire planet have codified women's productive rights into their constitutions. Only one country in the modern era has taken it away.

    https://en.wikipedia.org/wiki/Abortion_law

    1. And nearly all those countries have more severe restrictions on abortion than those forbidden by the Supreme Court nearly 50 years ago. There was a recent AP story quoting a French government official who was concerned about the United States' "regression" on abortion rights, apparently unaware of his own country's abortion laws. In France, abortion is allowed up to 14 weeks (recently changed from 12), and a woman must have two medical consultations prior to having an abortion. The Mississippi statute at issue in Dobbs allows abortion up to 15 weeks. I suspect, as did Justice Ruth Bader Ginsburg, that the United States would today have generally liberal abortion laws in most, if not every, state if the Supreme Court had not decided to short-circuit the democratic process, which was already heading in the direction of liberalization in 1973.

      1. And nearly all those countries have more severe restrictions on abortion than those forbidden by the Supreme Court nearly 50 years ago.

        This point would have more impact if there weren't already recently passed laws in various states and others in the works in anticipation of the overturning of Roe and Casey that are far more restrictive than anything in any of those countries. And who thinks that the Mississippi government will be satisfied with a 15 week limit if SCOTUS okays them going further?

        Unless your argument is that if the Supreme Court had never declared abortion to be a right, and states had been left to regulate or ban it all they wanted for the last 50 years, that the issue would some how not be that controversial. I doubt that. It isn't as uncontroversial as you imply in many of those countries.

        Of course, the other thing to factor into abortion rights and restrictions is the availability of health care for women that want to avoid becoming pregnant in the first place. In virtually ever other modern country, people don't go without health insurance. In those countries, women that have lower incomes, or no job at all, don't have to navigate a maze of programs depending on what state they live in and what non-profits might help them pay for doctor visits and the birth control options that would work best for them. One of the big problems in the U.S. is that the same activists that don't want abortion to be available also won't support or even actively oppose efforts to provide more comprehensive health care to women with fewer financial resources. Need proof of that? There is little more infamous showing how the right thinks on birth control access than Rush Limbaugh's attacks on Sandra Fluke in 2015.

        "What does that make her?" he asks. "It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex. She's having so much sex she can't afford contraception. She wants you and me and the taxpayers to pay her to have sex."

        It is important to note that the testimony Fluke gave (to an unofficial hearing arranged by House Democrats after the committee chair, Darrell Issa (R) refused to allow her to testify to her experience at Georgetown University (Georgetown is a Jesuit, that is, Catholic, university, though most students are not Catholic). The insurance plan offered by Georgetown did not include contraception, and the debate was over mandates to include contraception in employer provided health insurance plans, not about government subsidies for contraception. So, the idea of "taxpayers" paying for contraception was ludicrous to begin with.

        1. If Democrats would stop opposing OTC contraception, which would make it cheap and readily available, it wouldn't need to be covered by insurance.

          Contraception shouldn't be covered by insurance, not as an anti-woman thing, but because insurance is supposed to cover *uncertain risks*, and the need for contraception is not an unforeseen or uncertain risk. (Not all medical treatment should be covered by insurance, period. A routine physical is also not an unforeseen expense).

          My car insurance does not cover oil changes or routine maintenance. I pay for those things out of pocket. Medical care should be the same.

          1. My car insurance does not cover oil changes or routine maintenance. I pay for those things out of pocket. Medical care should be the same.

            Bad analogy. Oil changes and other routine maintenance on an automobile is about making sure it will run, whereas your car insurance is about covering the costs of accidents. Do you want health insurance to only cover medical costs when you actually get sick or injured and not include anything else? Since routine medical care can help you stay healthy enough to better resist illness, lower the risk of cancer or heart disease or kidney or liver problems, etc., health insurance covers preventative care.

            An insurance company would have to pay many thousands of dollars to cover the pregnancy, delivery, and post-partum care for a woman. That sounds like a lot more than paying for birth control.

    2. Who's trying to stop women from working? Reason's edit button, probably.

      More seriously, the Mississippi law banning abortions after 15 weeks is more abortion friendly than most of the world you quote: France, Germany, Italy, Belgium are all 12 weeks. Some other European states are liberal at 14 weeks.
      The UK is the huge European outlier with a ban after 24 weeks.

      South America? Mostly banned or 12 weeks.
      Asia? Japan is technically banned entirely, but in practice is allowed up to 12 weeks. China is around 14 weeks in most places. Korea is 14 weeks.
      Your own link shows that aside from the US and Canada, only three countries have restrictions more liberal the Mississippi's proposed laws.

      So I'm not sure why you think that moving to a similar standard to the rest of the world is so bad. Aren't we supposed to be learning from our more socially enlightened European kin?

      1. Do you have a link? I have been trying to make this point but info is scattered

        1. Hobie's own link does a decent job of demonstrating the flaws in his position, but for the specific countries, I just searched for something like "County_name + abortion laws" and took a look at what came up until I saw a couple of pages saying the same thing.
          No one page that lists all the laws, as far as I can tell, although there may be one on Wikipedia - they seem to have a lot of detail on this topic, however biased it is.

    3. >> "Nearly all countries in the entire planet have codified women's productive rights into their constitutions."

      In their constitutions? Really?

      Let's start with France, Germany, UK, Spain and Italy -- the five largest western European countries. Is the right to obtain an elective abortion contained in the constitution of any of these countries?

      Or is there a time-limited right to abortion established by a law passed by the elected legislatures of each of these countries?

      1. From 1861 until 2018, the constitution of Ireland prohibited abortion, with the 1983 constitutional amendment explicitly declaring a fetus to have an equal right to life as the pregnant woman. But after the 2012 death of Savita Halappanavar in Ireland while 17 months pregnant, there was a major push to change the Irish constitution. It culminated in a 2018 referendum to amend the constitution where over 66% of Irish voters approved of the 36th Amendment allowing their legislature to regulate abortion. It subsequently passed a law allowing it for any reason up to 12 weeks, or later if the woman's life or health is at risk or in cases of fatal fetal abnormality.

        Nationally, I would expect a similar result in the U.S. I think polls are fairly consistent in a similar percentage of U.S. adults thinking that abortion should be legal in the first trimester, and I'm sure at least a majority would agree with risk to "life or health" justifying it later than that. But the problem with going state by state is that there will states with a vocal group of voters that will want to ban and imprison any woman that has an abortion for any reason. (See Louisiana) I don't think any countries with laws more restrictive than what Roe and Casey require vary things below the national level.

        1. death of Savita Halappanavar in Ireland while 17 months pregnant,

          Surely that was weeks.

          1. Um, yes, weeks, sorry.

      2. Also, 'nearly all countries', when his link says 65 have legalized abortion for any reason to some degree (ie, including limits like 'up to 12 weeks') or decriminalized it.

        Last I checked, there were ~190 countries in the UN. 65 is not 'nearly all'.

  26. There's a number of fatal flaws with the logic here.

    -Politico reported this decision represented a majority according the leaker. The leaker would almost certainly be in a position to know. Now, they could be lying, but it's rather ridiculous to assign a 100% probability to them lying about it, because:

    -That Alito wrote this opinion at all means Roberts wasn't in the majority. If he was, he'd assign the opinion, and wouldn't give it to Alito, with an extremely high probability.

    -It's not consistent with what we know of how SCOTUS operates to assume that Roberts was in the majority and Alito wrote this opinion entirely on spec to see if he could get 5 votes on it, when he wasn't even assigned the opinion.

    -Roberts was the only justice who expressed even a little interest in trying to construct some unprincipled sophistry to attempt to draw a new line to give MS the win. While you can't infer too much from oral arguments, you can infer something. The idea this represented a significant likelihood of being the final decision was always a stretch, because there's no principled argument for a new line, and all that would do would make the court address 14, 13, 12, etc week bans until they announced a new firm line based on... nothing, there's nothing to base on.

    I would have put the original odds at 80% full overturn, 15% full uphold (MS loses), and 5% MS wins and we spend the next decade litigating a new line.

    It's hard to give any credibility at all to a theory that doesn't include an explanation for these points, which is why Post seems to going against just about everyone else with his 'this tells us nothing' theory.

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