The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Assignments and Timing in Dobbs
Who assigned the majority opinion to Justice Alito?
Now that the votes in Dobbs are finalized, we can look back at the case with the benefit of hindsight. At conference, it now seems clear that Justice Alito's position had five solid votes. Chief Justice Roberts was intent to write a concurrence in judgment based on "reasonable notice." He signaled this position during oral argument. (I will write about that concurrence in another post). I think it reasonable to infer that Justice Thomas assigned the majority opinion to Justice Alito. I suppose it is possible that the Chief Justice was cagey, and assigned the opinion to Alito, knowing that he could break away later. But I think it would be tougher for Roberts to commit to agreeing with Alito, at least in principle, only to later change his mind. NFIB already played that script.
Another related factor: the S.B. 8 case. Whole Woman's Health v. Jackson was argued on November 1, 2021. Dobbs was argued one month later on December 1, 2021. And Jackson was decided on December 10, 2021. By the time Jackson was decided, the majority to overrule Roe was established. I think that outcome may have made it easier for the Court to allow the enforcement of the fetal heartbeat law. Texas cannot "nullify" a constitutional right that the Supreme Court was prepared to overrule. Indeed, the joint dissent in Dobbs referenced the relationship between S.B. 8 and the Mississippi case:
Earlier this Term, this Court signaled that Mississippi's stratagem would succeed. Texas was one of the fistful of States to have recently banned abortions after six weeks of pregnancy. It added to that "flagrantly unconstitutional" restriction an unprecedented scheme to "evade judicial scrutiny." Whole Woman's Health v. Jackson (2021) (Sotomayor, J., dissenting). And five Justices acceded to that cynical maneuver. They let Texas defy this Court's constitutional rulings, nullifying Roe and Casey ahead of schedule in the Nation's second largest State.
Justices Breyer, Sotomayor, and Kagan jointly authored the dissent in Dobbs. Like with the joint dissent in NFIB, I think it is possible to guess which Justice wrote which component.
I thought the most effective part of the joint dissent came at the outset, before roman numeral I. It effectively summarized the entire opinion. Really, if you read those six pages, you get the gist of the entire dissent. If I had to be especially parsimonious for the casebook, I might just include his portion and skip the other sixty pages. This portion felt like a melange--a medley of all three writers, but it worked.
The joint dissent had three parts.
Part I reads like Kagan. You can tell by the liberal use of em-dashes and parentheticals. Plus, it is snappy, witty, and to the point. Here are a few choice excerpts:
So we do not (as the majority insists today) place everything within "the reach of majorities and [government] officials." West Virginia Bd. of Ed. v. Barnette (1943).
We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.
On the one side of 1868, it goes back as far as the 13th (the 13th!) century. But that turns out to be wheel-spinning.
The majority's failure to understand this fairly obvious point stems from its rejection of the idea of balancing interests in this (or maybe in any) constitutional context.
When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
The first problem with the majority's account comes from Justice Thomas's concurrence—which makes clear he is not with the program.
Part II reads like Breyer. It focuses on "experts" and statistics and so on. I found it the easiest to excerpt.
Part III reads like Sotomayor. Here, the joint dissent echoes Sotomayor's recent claim that the Court is "restless" to overrule precedents.
Now a new and bare majority of this Court—acting at practically the first moment possible—overrules Roe and Casey. It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans.
And Part III faults Mississippi for passing a law that conflicts with Casey, with full knowledge that a more-conservative Court may uphold it.
The year after enacting the law under review, the State passed a 6-week restriction. A state senator who championed both Mississippi laws said the obvious out loud. "[A] lot of people thought," he explained, that "finally, we have" a conservative Court "and so now would be a good time to start testing the limits of Roe." In its petition for certiorari, the State had exercised a smidgen of restraint. It had urged the Court merely to roll back Roe and Casey, specifically assuring the Court that "the questions presented in this petition do not require the Court to overturn" those precedents. But as Mississippi grew ever more confident in its prospects, it resolved to go all in. It urged the Court to overrule Roe and Casey. Nothing but everything would be enough.
This sort of realpolitik point is squarely in Sotomayor's wheelhouse.
One last note on the joint dissent. At times, the opinion got really, really repetitive. Over and over and over again, we heard about Griswold, Lawrence, and Obergefell. How many ways can you make the same exact point? It was obvious to me that the opinion was cobbled together from three separate writers. The joint dissent could have benefited from some better editing to avoid the repetitiveness. Then again, the liberal Justices are badly overworked. They have fewer majority opinions to join, and more separate writings. Get ready for the slog, Justice Jackson.
