The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So Long As Dobbs Remains Undecided, The Lives of the Justices Are At Risk
The Dobbs 5 should immediately issue an unsigned per curiam order, with an opinion to follow, even over the Chief Justice's objection.
At 1:50 am this morning, an armed man with burglary tools was arrested near Justice Kavanuagh's home in Maryland. He told the police that he wanted to murder the Justice. Fortunately, someone tipped off the police, and the man did not make it onto Kavanaugh's property. The police stopped him nearby. According to the Washington Post, the would-be-assassin was angry about the leaked opinion in Dobbs. We should all pray for the safety of Justice Kavanaugh, as well as the other Justices.
Every day that goes by, and Dobbs remains undecided, is a day that the lives of the Justices and their families are at risk. Immediately after the leak, I wrote that the Court should issue a one-sentence per curiam opinion, with a reasoned decision to follow--follow the path of Ex Parte Quirin. Lurking in the back of mind was the risk that a Justice could be assassinated. Now, that risk looks so much more real.
Why, then, has the Court not issued a decision in Dobbs yet? We know the majority opinion was finished in February. Yet, at least in May, the Chief Justice still had not circulated his much-vaunted concurrence. My cynical take was that "circulating the draft opinion at the latest possible juncture creates chaos, and makes it more likely that things can move around without sufficient deliberation."
Or maybe there is a less cynical, but equally dangerous explanation. Shortly after the leak of the Dobbs opinion, Chief Justice Roberts proclaimed, "The work of the Court will not be affected in any way." Perhaps Roberts thinks that by deviating from the normal course, the Court would be sending a signal that the leak did affect the Court's business. If so, Roberts continues to live in a different reality than the rest of us. Justice Kavanaugh nearly faced an assassination attempt. A group bearing the name of Ruth Bader Ginsburg advertises nightly protests outside of his home. Similar protests are scheduled outside of the homes of other Justices. Their lives have been turned upside down. All of the other Justices are at similar risk. The way to ensure that the Court "will not be affected in any way" is to decide a case as soon as it is ready, and remove the threat that someone will try to deprive the majority of the fifth vote.
Why is there a delay? So Roberts can take yet another ill-fated attempt to pick off one or two votes? A real leader would have put aside his quixotical quest for balance. Every day that passes, as the Chief haggles over votes, a target remains on the backs of his colleagues.
The Dobbs 5 should immediately issue an unsigned per curiam order, with an opinion to follow, even over the Chief Justice's objection. The Justices should send a clear and unequivocal message that they will not be intimidated by these acts of violence.
