The Volokh Conspiracy
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Ten Reflections on Justices Kavanaugh and Barrett's Votes In Dobbs
On Friday, I wrote a post that totaled nearly 6,000 words about the New York Times bombshell report on Dobbs. My initial goal was to simply lay out all of the new disclosures--and there were many of them. Now, I've had some time to think about this new information. Here, I will offer ten reflections about how Justices Kavanaugh and Barrett voted in Dobbs. In this post, I will presume that the reporting is accurate, with all the usual caveats about assumptions, as explained by Felix Unger (for another classic TV reference that most readers will not get).
First, the Dobbs petition was filed before Justice Ginsburg's death--indeed, it was filed a five days before June Medical was decided. Were there four votes to grant before RBG's death? In June Medical, there seemed to be three solid votes to reverse Roe: Justices Thomas, Alito, and Gorsuch. At the time, I wasn't sure if Justice Kavanaugh was on board, but there were favorable tea leaves in June Medical. The Chief, as always, was the wildcard. I was optimistic, but deep down, I never thought he would actually pull the trigger. Maybe John Roberts circa 2006 would have, but not after NFIB, and certainly not after Trump. And in hindsight, Roberts would do what the Casey plurality did, except move the line up from viability to fifteen weeks. Would it make sense for Justice Kavanaugh to vote to grant if Roberts was going to reaffirm Roe?
Second, by the time the Dobbs petition was distributed for its first potential conference on September 29, Justice Ginsburg had already passed away, and Justice Barrett's nomination was announced. At that point, some weight was taken off Justice Kavanaugh's shoulders, as he didn't need to be the deciding vote for certiorari. And Kavanaugh no longer needed to look to Roberts as the necessary fifth vote. According to the Times, Justice Alito rescheduled the petition several times as he awaited Justice Barrett's confirmation. Perhaps Justice Alito thought that Justice Barrett was a lock for granting cert right away, even if Kavanaugh was uncertain. Maybe lots of people in the White House thought that as well.
Third, the petition was finally scheduled for consideration at the January 8, 2021 conference--only two days after January 6! According to the Times, there were five votes to grant, with Kavanaugh and Barrett on board. Had the Court granted at that conference, the case would have been argued and decided that same term, with a decision by July 2021. But the Court did not actually grant the case that day. Rather, Justice Kavanaugh proposed that the case should be relisted for some time to kick the argument till the following term. I've long suspected the Court manipulated the timing of the docket through relists, reschedules, and CVSGs. This episode provides some support for that theory. (In SFFA, the Court I speculated that the Court CVSG'd, followed by unnecessary relists, to avoid having to decide abortion and affirmation action in the same term.) Still, Kavanaugh did not need to be the fourth vote for certiorari--it could have been Barrett.
Fourth, Justice Barrett issued an ultimatum: if the Court did not postpone the case till the following term, she would flip her vote to "deny." Remember, at that point Barrett had only been on the Court for about two months, and was still getting her feet wet. But this claim only works if Kavanaugh did not issue a similar ultimatum. In other words, if Kavanaugh said "postpone or I vote to deny," the conservatives had no choice but to relist. Thomas, Alito, and Gorsuch could not do anything unless either Kavanaugh or Barrett provided a fourth vote. But what seems likely is that Kavanaugh and Barrett agreed to the same dilatory tactic, forcing the conservatives to go along with relisting the case. The article gives Kavanaugh credit for the delay strategy, and suggests that Barrett followed along. But I'm not sure if that sequencing makes sense. Or it is possible the Times was reporting from Kavanaugh's perspective. Even though I presume that the Times's reporting is accurate, we have to be candid, and recognize that different sources provide a different spin on very complicated events. Success has many parents, but failure is an orphan.
Fifth, during the never-ending relists, Justice Breyer apparently tried to work on Justice Kavanaugh, urging him to not "rush." Kavanaugh was also apparently receptive to Breyer's entreaties, but was not persuaded. Kavanaugh comes off looking open-minded and reasonable, but ultimately principled. The Times does not report that Breyer was trying to play on Barrett. The cynic in me sees this sort of one-sided perspective as coming from the Kavanaugh and Breyer camps, but one can never know.
Sixth, the conservatives went along with Kavanaugh's plan, and the Court relisted the petition for about four months. But at some point, Barrett flipped her vote from "grant" to "deny." As we know all too well, until a Justice's vote is publicly released, it is not final. And because of Justice Kavanaugh's dilatory tactic, Barrett's voting to grant the petition on January 8 did not count since there was no published grant. The Times offers no explanation why Barrett flipped her vote. "Her reasons for the reversal are unclear." It may be that the sources did not know Barrett's reasoning. Or it could be that Barrett never told any of the sources her reasoning. But she certainly had some rationale for her decision. Now Barrett did not expect her flipped vote to become public. So this flip was intended to serve some internal purpose. Was she pushing back against the Court's conservatives? They went along with the delay tactics, so I'm not sure why she would be pushing back against Thomas, Alito, and Gorsuch. Was she signaling to the Court's progressives and the Chief Justice that she is reasonable, and not in a hurry? Perhaps. Moreover, since Kavanaugh was a lock for the fourth vote for cert, Barrett had a free vote. Or maybe Justice Barrett simply decided that the Court should not grant the case, because Roe v. Wade should stand. Maybe she thought by flipping her vote to "deny," Kavanaugh feared there weren't five votes to reverse, so Kavanaugh would deny cert. Though, in hindsight, Barrett voted to reverse Roe. Again, we do not hear Barrett's perspective on this issue. I would presume that her camp was not involved in the leaks, but one can never know.
Seventh, after Dobbs was granted, the Court had to deal with the S.B. 8 litigation. I remain convinced that Texas's fetal heartbeat law was an essential element of Dobbs. The Court saw in Texas what the post-Roe world would look like. But even before Whole Woman's Health v. Jackson was decided, I think the S.B. 8 oral argument on November 1, 2021, also served an important purpose. Readers may recall that Justices Kavanaugh and Barrett strongly signaled that they would find some way to stop S.B. 8. Immediately after the oral argument, I, and others, wrote extremely aggressive responses aimed at Kavanaugh and Barrett. I wrote that they caved to judicial supremacy--fighting words if there ever were any. To be sure, these pieces responded to the sorts of misguided legal analyses Barrett and Kavanaugh were hinting at. But these responses served another, perhaps, less-appreciated function. The conservative Justices occupy a rarified place in the conservative legal movement. When they enter a ballroom at the Federalist Society Convention, they are given thunderous applause. It is rare for them to be attacked by friendly fire. (Well, I do it all the time, but I am an outlier.) But if John Roberts had entered a FedSoc ballroom after NFIB, he would likely have been booed. The strong reaction on the right to the S.B. 8 arguments signaled to Kavanaugh and Barrett what would likely happen if they caved on Dobbs. Kavanaugh and Barrett are not welcome in other legal forums. At best, they are briefly tolerated, while angry students are kept at bay. Kavanaugh and Barrett know this. The conservative legal movement is their only home. I have no inside information that what I've written in this paragraph is accurate, but I firmly believe the post-argument efforts by myself and others in Whole Woman's Health cleared the path for Dobbs.
Eighth, when Dobbs was argued on December 1, Whole Woman's Health had already been decided (the opinion would be released on December 10). And Justices Kavanaugh and Barrett were locked down on WWH and Dobbs. There were five votes at conference to reverse Roe. And Justice Thomas assigned the majority opinion to Alito. By that point, I suspect Alito had already written the opinion, and he likely prompted circulated drafts to the most tentative votes: Justices Barrett and Kavanuagh. Alito sprinkled references to democracy to appease Kavanaugh, and added some discussion about adoption for Barrett. By the time the February "first draft" was circulated, Kavanaugh and Barrett were already on board. They promptly joined.
Ninth, after the opinion was circulated, Justice Breyer continued his entreaties to Justice Kavanaugh. The proposal was audacious: another Casey. A plurality of three moderates substantially rewrites Roe, but maintains its "core holding." Rather than drawing the line at viability, the line would now be drawn at fifteen weeks. One arbitrary standard would be swapped for another arbitrary standard. There is absolutely no law behind either approach. It is purely a political compromise to appease the left. Had Kavanaugh went along with that approach, he would be no different than Justice Kennedy in Casey, or worse, Justice Souter. Indeed, it likely would have leaked out that Kavanaugh was originally on board, but later flipped to the moderate position. Just like Kennedy in Casey. To circle back to my seventh point, this sort of flip would have rendered Kavanaugh persona non grata in conservative circles. Even before the Politico leak and the assassination attempt, I don't think Kavanaugh could have ever brooked this sort of reversal. I often describe Roberts and Kavanaugh as two peas in a pod, but in one important regard they are different. Roberts had the fortitude to strike out against his own camp, and become a loner for life. Roberts certainly knew that NFIB would have that effect. Roberts put the Court before himself. In that limited regard, I have a grudging respect for the Chief. But I don't think Kavanaugh would be willing to take a similar stand, and throw away his deep ties to the conservative legal movement for the sake of institutionalism. So no, Justice Breyer's approach was never going to work.
Tenth, Justices Kavanaugh and Barrett were both settled on reversing Roe after the first draft was circulated. It seems unlikely to me that a conservative Justice would leak the Politico draft as a means to lock in Justices who were already locked in. The liberal leak theory still seems more likely to me. The purpose was to "burn it all down," as the saying goes--the Flight 93 leak. But I don't think we'll ever know--unless Josh Gerstein decides to disclose his "Deep Throat" in some time.
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Let's put things in perspective. Even after Justice Barrett's confirmation, Dobbs still almost didn't happen. It could have been that neither Justice Kavanaugh nor Barrett were willing to grant cert. It could have been that one of those Justices went along with Justice Breyer's Casey-like compromise. It could have been that one of those Justices changed their vote at the last minute. President Trump boasted that he would pick Justices who would "automatically" reverse Roe. He didn't. Indeed, I think he picked two of the judges whose votes were most in doubt to overrule Roe. That it still happened, despite everything we know now, is nothing less than a miracle. All of the things that had to go right since Casey for Dobbs to happen is difficult to comprehend.
Earlier, I posted my essay in the Texas A&M Journal of Law and Civil Governance, titled Reviewing The Three Trump Appointees: Ex Ante and Ex Post. I noted in that piece that Justices Kavanaugh and Barrett have not surprised me much. Justices Kavanaugh and Barrett continue to not surprise. They are behaving as could be predicted based on their pre-nomination records.
And here we are. About 18 months from Dobbs (the sixth trimester for those keeping count at home), and virtually every ballot initiative has expanded abortion rights, and Democrats have found a signature issue that continues to win elections. Dobbs made Democrats great again. I'd wager that in ten years, abortion protections are stronger nationwide than before Dobbs. The Chief Justice's position, had it commanded a majority, would have destroyed the conservative legal movement, but would have ensured electoral victories for the Republican party. That's about right.
