The Volokh Conspiracy

Last year, I attended then-Judge Jackson's confirmation hearings. Most of the proceedings were utterly unmemorable. Perhaps the only important revelation came when Senator Ted Cruz of Texas asked if Jackson would recuse from Students for Fair Admission v. Harvard. "That is my plan, senator," she said. Up to that point, the Harvard and UNC cases were consolidated. But after Jackson took the bench, the Supreme Court unconsolidated the Harvard case from the UNC case. Why? Presumably to allow Justice Jackson to at least participate in the UNC case. And to be clear the eight Justices decided to do so on their own motion. No party made this request. I think the Court was working on a general assumption that a full bench should be present where possible. On the lower courts, a panel could have just drawn another judge at random. But on the Supreme Court, there are no substitutes.

The two cases were argued separately in October. Argument in the UNC case stretched nearly three hours, with Justice Jackson participating. Argument in the Harvard case stretched another two hours, with Justice Jackson absent. At the time, I expected the Supreme Court to resolve the statutory issue in the Harvard case and the constitutional issue in the UNC case. Justice Jackson would be able to write something in the former case, but not the latter. Alas, that outcome was not meant to be.

The majority decided to resolve the statutory and constitutional issues in a single opinion. Gratz stated that admission policies that violate the Equal Protection Clause also violate Title VI. (Justice Gorsuch is almost certainly correct this statement from Gratz is in error.) And, Chief Justice Roberts observed, "no party asks us to reconsider" that statement from Gratz. Therefore, the Court would "evaluate Harvard's admissions program under the standards of the Equal Protection Clause itself." (This conclusion in Footnote 2 led to the jarring locution that Harvard violated the Fourteenth Amendment.)

Once the Court chose this path, there would no longer be two separate opinions. What was Justice Jackson to do? The very last page of the majority opinion states that Justice Jackson "took no part in the consideration or decision of the case in No. 20-1199"--that is, the Harvard case. Justice Sotomayor's dissent included a similar footnote: "JUSTICE JACKSON did not participate in the consideration or decision of the case in No. 20–1199 and joins this opinion only as it applies to the case in No. 21–707"--that is, the UNC case. Justice Jackson's separate dissent included the same footnote.

Ultimately, Justice Jackson's eight colleagues all signed onto a statement that Justice Jackson "took no part in the consideration or decision of the case in No. 20-1199." Can that statement possibly be true? To be sure, Justice Jackson did not participate in the Harvard oral argument. She almost certainly did not vote at conference in this case. And the separate opinion she wrote only referenced the facts at UNC and not at Harvard. But beyond those obvious points, the "recusal" become more complicated. In many places, Justice Jackson responded to the Chief Justices's opinion concerning the Harvard case. I think it is a safe assumption that she reviewed the draft opinion in advance. Were those opinions redacted to remove any discussion of Harvard? Did she just skip over those pages? Were the memos circulated to the Jackson chambers likewise redacted? Does anyone believe these prophylactic steps actually happened?

On the lower courts, recusal means a judge has no contact with a case. Zero. She does not even see draft opinions that are being circulated. But on the Supreme Court, the practice apparently is different. The question turns on what "consideration or decision" means. Does that mean a Justice is hermetically sealed from a case? Or are the rules looser in a big case? I know it is en vogue to attack the Justices as ethically challenged, but here we have a clear case where a Justice said she would recuse, all nine Justices agreed she "took no part in the consideration or decision of the case," yet she obviously had at least some involvement.

Richard Re expresses a similar skepticism:

These facts make it hard to deny that Jackson participated in the consideration of the Harvard case. Again, Jackson read a draft of the majority opinion in that case. She wrote an opinion criticizing the core reasoning of the majority's draft. And the final version of the opinion for the Court in the case expressly responds to her objections. . .  . Yet the fact that Jackson did not write explicitly about Harvard shows, at most, that she did not participate in every aspect of the Harvard case's "consideration." Her dissent addressed only the case's core legal issues, rather than factual points. But both recusal principles and Jackson's disclaimer promise something more—namely, withdrawal from the entire case.

Richard goes one step further, and suggests that the Court had some sort of obligation to restructure the case so that Justice Jackson could fully participate, without any ruses:

The majority justices in particular should have arranged their work so as to maximize Justice Jackson's valuable participation without jeopardizing or undermining her recusal. Their collective failure to do so has turned recusal into a farce.

Here, I'll defend Justice Jackson--or more precisely, the principle that the Supreme Court needs to follow different recusal rules than the lower courts.

First, implicit in Richard's comment is a premise: a bench of nine is extremely important--so important that the Justices unconsolidated the cases. This unusual step reflects how disruptive a short-handed bench can be in a high-profile case. But ultimately, the Court reconsolidated the cases, with Jackson still quasi-recused. Why is nine so important? Look no further than the period between Justice Scalia's passing and Justice Gorsuch's confirmation. In many of these disputes, the Court reached "compromises" that didn't resolve pressing issues. Other cases were dumped 4-4.  Chief Justice Rehnquist addressed the value of nine when he declined to recuse in the Microsoft antitrust litigation. At the time, his son worked at a firm that represented the tech giant.

[B]y virtue of this Court's position atop the federal judiciary, the impact of many of our decisions is often quite broad. The fact that our disposition of the pending Microsoft litigation could potentially affect Microsoft's exposure to antitrust liability in other litigation does not, to my mind, significantly distinguish the present situation from other cases that this Court decides.  . . . . Finally, it is important to note the negative impact that the unnecessary disqualification of even one Justice may have upon our Court. Here–unlike the situation in a District Court or a Court of Appeals–there is no way to replace a recused Justice. Not only is the Court deprived of the participation of one of its nine members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court.

Second, and relatedly, critics want to increase the number of recusals on the Supreme Court. I think this number should be kept to a minimum. The obvious response is that Justices should not hear a case where there objectivity can be questioned. Does anyone honestly believe that Justice Jackson's vote on this issue would be affected by her service on the Harvard Board of Overseers? The Justices have very strong views on legal questions. They are nominated in large part because of those views. Those priors probably weigh on their votes far more than any prior service at Harvard. If we take conflicts of interest seriously, a Justice's deeply-held views on affirmative action should favor recusal far more than service on a board that had some tangential connection to the university's affirmative action policies. But if that were the rule, few high-profile cases could even muster a quorum.

Third, Justice Jackson presumably asked her colleagues for advice. Indeed, the other eight Justices would have to be personally familiar with the facts to state that Jackson took no part in the "consideration or decision." Again, a Justice could have objected to this statement, but no one did. I think it prudent that the Justices can rely on the advice of their other colleagues. And this co-counseling should likewise extend to concerns about other facets of legal ethics--including acceptance of gifts and reporting requirements.

Fourth, it would have been extremely problematic for Justice Jackson to seek advice from some other authority--whether lower court judges or some other body. The mere fact of seeking advice would have necessarily breached confidence. It would be impossible to counsel Jackson unless she explained the specific dynamics of the Court's private, internal deliberations. And we do not need to create the risk of more Supreme Court leaks.

With regard to Justice Jackson, the Supreme Court's internal ethics protocols worked exactly they were designed. Still, I will patiently wait for complaints from FixTheCourt, a demand letter from Senator Whitehouse, and an expose from ProPublica.

Geopolitics has always played a role in prosecuting hackers. But it's getting a lot more complicated, as Kurt Sanger reports. Responding to a U.S. request, a Russian cybersecurity executive has been arrested in Kazakhstan, accused of having hacked Dropbox and Linkedin more than ten years ago. The executive, Nikita Kislitsin, has been hammered by geopolitics in that time. The firm he joined after the alleged hacking, Group IB, has seen its CEO arrested by Russia for treason – probably for getting too close to U.S. cyber investigators. Group IB sold off all its Russian assets and moved to Singapore, while Kislitsin stayed behind, but showed up in Kazakhstan as a result of the Ukraine war broke out. Now both Russia and the U.S. have dueling extradition requests before the Kazakh authorities; Paul Stephan points out that Kazakhstan's tenuous independence from Russia will be tested by the tug of war.

In more hacker geopolitics, Kurt and Justin Sherman examine the hacking of a Russian satellite communication system that served military and civilian users. It's reminiscent of the Viasat hack that complicated Ukrainian communications, and a bunch of unrelated commercial services, when Russia invaded. Kurt explores the law of war issues raised by an attack with multiple impacts. Justin and I consider the claim that the Wagner group carried it out as part of their aborted protest march on Moscow. We end up thinking that the hack makes more sense as the Ukrainians serving up revenge for Viasat at a time when it might complicate Russian's response to the Wagner group.  But when hacking meets geopolitics, who really knows?

Paul outlines the legal theory – and antitrust nostalgia – behind the  FTC's planned lawsuit targeting Amazon's exploitation of its sales platform.  We also ask whether the FTC will file the case in court or before the FTC's own administrative law judge. The latter course may smooth the lawsuit's early steps, but it will also bring to the fore arguments that Lina Khan should recuse herself because she's already expressed a view on the issues to be raised by the lawsuit. I'm not Chairman Khan's biggest fan, but I don't see why her strongly held policy views should lead to recusal; they are, after all, why she was appointed in the first place.

Justin and I cover the latest Chinese law raising the risk of doing business in that country by adopting a vague and sweeping view of espionage.

Paul and I try to straighten out the EU's apparently endless series of laws governing data, from the General Data Protection Regulation (GDPR) and the AI Act to the Data Act (not to be confused with the Data Governance Act). This week, Paul summarizes the Data Act, which sets the terms for access and control over nonpersonal data. It's based on a plausible idea – that government can unleash the value of data by clarifying and making fair the rules for who can use data to create new businesses. Of course, the EU is unable to resist imposing its own views of fairness, thus upsetting existing commercial arrangements without really providing any certainty about what will replace them. The outcome is likely to reduce, not improve, the certainty that new data businesses want.

Speaking of which, that's the critique of the AI Act now being offered by dozens of European business executives, whose open letter slams the way the AI Act kludged the regulation of generative AI into a framework where it didn't really fit. They accuse the European Parliament of "wanting to anchor the regulation of generative AI in law and proceeding with a rigid compliance logic [that] is as bureaucratic …  as it is ineffective in fulfilling its purpose." And you thought I was the EU-basher.

Justin recaps an Indian court's rejection of Twitter's lawsuit challenging the Indian government's orders to block users who've earned the government's ire. Kurt covers a matching story about whether Facebook should suspend Hun Sen's Facebook account for threatening users with violence. I take us to Nigeria and question why social media thinks governments can be punished for threatening violence.

Finally, in two updates,

• I note that Google has joined Facebook in calling Canada's bluff by refusing to link to Canadian news media, thus avoiding the Canadian link tax. For Cybertoonz's comment on Google's response, see below.
• And I do a victory lap for the Cyberlaw Podcast's Amber Alert One week after we nominated the Commerce Department's much delayed and nearly invisible IT supply chain security program for an Amber Alert, the Department answered the call by posting the Executive Director job in USAJOBS.

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And the latest from Cybertoonz:

On the Supreme Court, a lot has changed in the past five years. Justice Kennedy was replaced by Justice Kavanaugh. Justice Ginsburg was replaced by Justice Barrett. Many Kennedy-brokered compromises would now come out differently. Last term, Justice Sotomayor lamented, "What a difference five years makes." Here, she was counting the five years period from Trinity Lutheran Church v. Comer (2017) to Carson v. Makin (2022). Trinity was a 7-2 decision, that was joined by Justices Breyer and Kagan. Compromise was the name of the game back then. The Court held that the government could not discriminate a church for its religious "status," but the Court left open the question of whether the government could deny funding for religious "uses."  But over the ensuing five years, the Court retreated from that compromise. Carson, and before that Espinoza, made it very difficult for the government to deny funding for religious uses. The compromise fell apart. Justice Sotomayor's regrets that the Court circa 2017 would have never supported that holding.

Justice Sotomayor repeated this same five-year line in 303 Creative v. Elenis. Here, she was counting five years from Masterpiece Cakeshop v. Colorado (2018). This decision, handed down in Justice Kennedy's final term, avoided the Free Speech question, and instead ruled based on the Free Exercise Clause. Rather, in another 7-2 decision with Justices Breyer and Kagan on board, the Court found evidence of religious animus in the state proceedings, in violation of Lukumi. That decision avoided the question of whether a cake was protected speech. Again, Sotomayor's recalls that compromise was the playbook before Justice Kennedy retired. But there are new rules now. (I pause to stress that Justice Sotomayor dissented in both Trinity Lutheran and Masterpiece--no compromise on her part.) In 303 Creative, Justice Gorsuch wrote a full-throated defense of the website designer. Such an opinion would have been unfathomable in 2018.

What would Masterpiece have looked like if the Court did not decide the matter on free exercise grounds? Would Jack Phillips have lost on free speech grounds? I'm not sure that Justice Kennedy could have mustered that outcome. For sure, the Court would not have produced a rousing defense of free speech like the one that Justice Gorsuch delivered. In a way, the five year punt from 2018 worked out for the benefit of the Masterpiece Cakeshop and 303 Creative. Going forward, I remain uncertain how many of these cases will actually arise. I suspect tester plaintiffs will stop targeting the handful of vendors who decline to service same-sex weddings. These cases will simply fade away.

Speaking of five years, on the mop-up list, the Court GVR'd Klein v. Oregon Bureau of Labor and Industries. This case involves Sweet Cakes by Melissa, another baker who declined to make a wedding cake for a same-sex marriage. If this case sounds familiar, it should. In 2019, the Supreme Court GVR'd this case in light of Masterpiece Cakeshop. So the Supreme Court has now GVR'd the same dispute, twice, in light of landmark First Amendment cases. Has any case ever seen such treatment? Meanwhile, the Klein litigation has been ongoing for more than a decade. And, once again, the baker will have to slog through the Oregon courts. Now, did Justice Gorsuch's opinion resolve whether a baker is involved in expressive speech? I don't think so. The Oregon courts may once again rule against Klein. The Supreme Court will see this case again in another five years! And you wonder why Baronelle Stuzman settled the never-ending Arlenes Flower's case while 303 Creative was still pending.

Last term, Chief Justice Roberts warned that Dobbs would cause a "serious jolt to the legal system." Which case from the term-that-just-finished caused the most significant jolt? It's not Students for Fair Admissions. Universities will quickly find ways to cheat the ruling and wait to be sued. It will take years to suppress the massive resistance--assuming the Court is committed to the enterprise. And don't say Moore v. Harper. The "strong" version of the Independent State Legislature Doctrine was never going to be approved. At most, a bare majority of the Court would probably adopt Chief Justice Rehnquist's concurrence from Bush v. Gore. (I remain flummoxed why scholars who rejected the existence of the ISL doctrine are claiming victory by a decision that accepted the "weak" version of ISL.) And don't say Allen v. Milligan. That decision, at most, will probably create a few more majority-minority districts in the South, which may flip the House, but the Court did not break much new legal ground.

No, the decision this term that has the potential to create the biggest legal "jolt" was Mallory v. Norfolk Southern Railway Co. The facts are fairly straightforward: Norfolk Southern Railways is headquartered in Virginia; the plaintiff is a citizen of Virginia; the plaintiff allegedly suffered injuries as an employee of the railroad in Virginia and Ohio. But the Plaintiff filed suit in Philadelphia, Pennsylvania. Why? Justice Alito hints at one possible answer: the venue "is reputed to be especially favorable to tort plaintiffs." Of course, that is the plaintiffs' decision. As a general matter, the plaintiff gets to decide where to sue a defendant. But the defendant has defenses--specifically, that a given court lacks personal jurisdiction over the defendant. And that's what Norfolk Southern argued. The railroad is not headquartered in the Pennsylvania, so there is no "general" jurisdiction. And the railroad did not have "minimum contacts" with Pennsylvania, so there is no "specific" jurisdiction. But Pennsylvania has an unusual law: any business that registers to transact business in the state submits to jurisdiction of Pennsylvania state courts. (Or at least this is how the plaintiff reads the statute.)

The conflict is palpable. Norfolk Southern wants to stay out of Philadelphia, which is reputedly favorable to plaintiffs. And Mallory, as Justice Alito suggested, chose that forum deliberately. The stakes of this case could not be greater. If Mallory prevails (and whether he ultimately prevails is still up in the air), every corporation that has registered to do business in Pennsylvania will now be at the mercy of Philadelphia trial courts. And other states can follow-suit: California, Illinois, Washington, and so on. This risk is severe for businesses. (The Washington Supreme Court, in particular, reads the Due Process clause through the lens of anti-racism.)

Mallory prevailed by something of a 5-4 vote. The split here may never repeat itself. Four justices held that the Pennsylvania registration statute complies with the Due Process Clause of the Fourteenth Amendment: Justice Gorsuch, joined by Justices Thomas, Sotomayor, and Jackson. Four Justices held that the statute violates the Due Process Clause: Justice Barrett, joined by Chief Justice Roberts, and Justices Kagan and Kavanaugh. And who was in the middle? Justice Alito. He agreed that Mallory should prevail under Pennsylvania Fire of Philadelphia v. Gold Issue Mining (1917), a very old Due Process precedent that arguably has been obviated by half a century of CivPro cases. He did not join much of Justice Gorsuch's historical analysis. Still, Justice Alito suggested that Pennsylvania's regime violates the Dormant Commerce Clause.  Here, Justice Gorsuch did not give Pennsylvania Fire the Lemon test treatment--no matter how many decisions abrogated that old precedent, it somehow survived.

If we had a "pro-corporation" Court, Mallory should have prevailed by a large vote. Yet Justices Gorsuch, Thomas and (mostly) Alito ruled in favor of Mallory. Why did Justice Alito join the majority in part? I doubt he has any sympathy for Philadelphia trial lawyers. Still, his decision to follow Pennsylvania Fire kept the case alive. And now the lower courts can declare the statute under the Dormant Commerce Clause. If the case returns, after Pork Producers, the Court will now have a chance to further clarify the doctrine, and bring it closer to the original meaning of the Constitution. The upshot of this theory, which Steve Sachs advanced, is that Congress retains the power to regulate interstate commerce, and could impose a nationwide standard on these sorts of registration statutes. But a ruling on the Due Process Clause, however, could only be remedied by constitutional amendment, or a new Supreme Court Justice--whichever comes first.

Next we get to the dissenters. Justice Barrett and Kagan, in particular, taught civil procedure for many years. They can probably recite the holding from International Shoe in their sleep. These cases are so deeply embedded in our law, and in casebooks, that Justice Barrett could not even countenance how Pennsylvania Fire could survive the New Deal. She derisively called the majority's theory "clever." (She also dismissed Eugene Volokh's theory in Hansen as "novel.")  I was piqued by Justice Barrett's suggestion that the Due Process Clause protects interstate federalism. This argument needs some work--it resembles the substantive due process slop that Justice Kennedy ladled in Windsor. The Due Process Clause protects "persons," not states. (Justice Alito's concurrence is exactly correct on this point.) Justice Barrett would not support the majority's "sea change" in the law. But Justice Gorsuch is "happy to see" these precedents go.

In any event, this case may yet return to the Supreme Court. Steve Sachs explained what may come next.

In recent years, the Supreme Court of the United States has devolved several important decisions to the states--or more precisely, the state Supreme Courts. Of course, Dobbs extricated the federal judiciary from the abortion issue. In the wake of Dobbs, several states have enacted constitutional protections for abortion. But in other states, state supreme courts have recognized a constitutional right to abortion in the state constitution. Those rights were apparently there all along, but there was no need to see them because of Roe. Go figure!

Unsurprisingly, the stakes of state supreme court races have become far more significant. Look no further than Wisconsin, where a candidate ran, and prevailed, on the not-so-subtle platform of protecting abortion rights. Dobbs unquestionably got the federal courts out of the abortion business, but the locus for judicial overreach shifted to the next option--the state courts.

A similar dynamic is at play with regard to partisan gerrymandering. Rucho v. Common Cause held that the United States Supreme Court would not resolve disputes about partisan gerrymandering. Rather, the state supreme courts would decide those issues under state constitutions. These decisions, of course, may implicate the Election Clause and the Independent State Legislature doctrine. But Moore v. Harper reaffirmed that the state courts have extremely broad power to redraw maps for federal elections. Indeed, it will be extremely difficult for the inferior federal courts to even hear challenges to these maps. Perhaps the only route for review will be through certiorari petitions, which will be routinely denied. (Derek Mueller made this point shortly after Moore was decided.) Once again, the significance of the state courts becomes even more important. Look no further than North Carolina, where the recently-elected Republican state supreme court overruled the "precedent" (but not the "judgment") of the former Democratic majority.

As the unelected judiciary becomes depoliticized, the elected judiciary becomes more politicized. On balance, I am okay with this shift. As Judge Sutton explains, there are 51 imperfect solutions, and just that many imperfect state supreme courts, plus hundreds of imperfect state supreme court justices. Fortunately, it is much simpler to improve a state bench, than to "reform" the highest court of the land. Still, I worry deeply about races like the one in Wisconsin where candidates effectively prejudged cases. Neutrality, or at least the pretense of neutrality, is a bedrock of any judicial system. Otherwise, we are just left with a Council of Revision, which didn't work out too well in New York.

Flash back to June 2020. The supposedly-conservative 5-4 majority of the Supreme Court, in case after case, swung to the left: McGirt, Mazars, Vance, June Medical, Regents, Bostock, and so on. Things became so bleak I referred to the period as Blue June.

Now, jump forward to June 2022. The expanded 6-3 conservative majority, in case after case, swung to the right: West Virginia, Castro-Huerta, Kennedy, Dobbs, Bruen, Carson, and so on. In my lifetime, I could not recall such a consistent string of decisions that favored conservative jurisprudence. I called the period, fittingly, Red June.

What do I make of June 2023? Well, it is somewhere in between Red June and Blue June. Call it Purple June. There were several significant decisions to the right: 303 Creative, Nebraska, and Students for Fair Admission. (Curiously, all the hard-right decisions came on the last two days of the term--more on timing later.) There were several significant decisions to the left: Moore, Texas, Brackeen, and Milligan. And there were a few significant decisions that are harder to characterize: Groff, Mallory, and Pork Producers. It's a mix.

There will be umpteen efforts to explain this term, but ultimately, a single factor predominates: Chief Justice Roberts and Justice Kavanaugh consistently vote with the Court's progressives to form a five-member block. According to Empirical SCOTUS, Chief Justice Roberts and Justice Kavanaugh have a 95% voting agreement rate since 2018. Moreover, according to the New York Times, this term Justice Kavanaugh was in the majority of divided cases 90% of the time, while the Chief was in the majority 86% of the time. Justice Thomas was in the majority of divided cases only 55% of the time. Shortly after Kavanaugh joined the Court, there were a spate of stories suggesting that Roberts would vote like Justice Kavanaugh. Five years in, we can confirm those early prognostications.

I offered the New York Times this quote:

Some conservatives have been frustrated. Gov. Ron DeSantis of Florida, a Republican and a rival to Mr. Trump for the Republican presidential nomination, recently said that none of Mr. Trump's three appointees "are at the same level" of Justices Thomas and Alito.

Josh Blackman, a law professor at South Texas College of Law Houston, said the critique had force from a conservative perspective, and he questioned the adequacy of the Trump administration's vetting process, which relied on lists of potential nominees compiled by lawyers with ties to conservative legal groups like the Federalist Society and the Heritage Foundation.

"For different reasons, Justices Gorsuch, Kavanaugh and Barrett have and will continue to disappoint conservatives," Professor Blackman said. "I don't know that future 'short lists' are worth much if they are made by the same people who generated the last batch of lists."

Remember that Justice Kavanaugh was not Trump's first list. (Nor was Gorsuch). Justice Kavanaugh's exclusion from the unadulterated, unlobbied list was quite deliberate. He was added, no doubt, so he could be nominated. This term, Justice Kavanaugh voted with Justice Jackson 62% of the time, but voted with Justice Thomas only 48% of the time. Did everyone who vigorously advocated for Justice Kavanaugh predict that he would vote with the author of the Obamacare decision 95% of the time, and be closer jurisprudentially to Ketanji Brown Jackson than to Clarence Thomas? Governor DeSantis is not wrong.

I've now finished all of the opinions of the Court this term. Well, to be precise, I didn't read every word. I skimmed some parts and skipped others. But I've internalized the decisions, and plan to write a bit. Stay tuned.

The ABC News/Ipsos poll reports 52%-32% support for the decision ("Do you approve or disapprove of the recent decision by the U.S. Supreme Court restricting the use of race as a factor in college admissions"):

The majority includes majorities of both white (60%) and Asian (58%) Americans. Latino and Hispanic Americans are split on the ruling (40% approve vs. 40% disapprove), and the majority of Black Americans disapprove ([25% approve vs.] 52% [disapprove]).

Note that the margin of error is necessarily higher for racial subgroups, especially smaller ones, than for the sample as a whole (for that, it's reported as ±3.5%), even though they were slightly oversampled (with the oversamples being statistically accounted for in the overall results). Note also that, despite the race gap, it's clear that no racial group is even close to homogeneous in its views.

The poll also reports …

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In Members of the Medical Licensing Board of Indiana v. Planned Parenthood, decided Friday, the Indiana Supreme Court (in an opinion by Justice Derek Molter, joined by Chief Justice Loretta Rush and Justice Mark Massa) concluded that the Indiana Constitution's protection of "life, liberty, and the pursuit of happiness" "protects a woman's right to an abortion that is necessary to protect her life or to protect her from a serious health risk":

Plaintiffs emphasize that abortion procedures are sometimes their only means to save their patients' lives. That is undisputed, and we agree the Constitution—including Article 1, Section 1—does not permit the General Assembly to prohibit abortion in those circumstances. But that is not a basis for enjoining the entirety of Senate Bill 1 in all circumstances, including when abortion is unnecessary to protect a woman's life or to protect her from a serious health risk.

Article 1, Section 1 expressly protects an "inalienable" right to "life," which was a firmly established right long before Indiana became a state. That right to protect one's own life extends beyond just protecting against imminent death, and it includes protecting against "great bodily harm." Although the State disputes that Article 1, Section 1 is judicially enforceable, it recognizes that governmental authority is limited to the police power, and it acknowledges "grave doubt" that the police power would permit the State to prohibit an abortion that was necessary to save a woman's life.

Because this fundamental right of self-protection—whether considered as an exercise of the right to life, an exercise of the right to liberty, a limitation on the scope of the police power, or as a matter of equal treatment—is so firmly rooted in Indiana's history and traditions, it is a relatively uncontroversial legal proposition that the General Assembly cannot prohibit an abortion procedure that is necessary to protect a woman's life or to protect her from a serious health risk.

Reflecting that understanding, all of Indiana's abortion statutes since 1851 have recognized an exception for abortions that are required to protect a woman's life…. And now that the United States Supreme Court has returned broad discretion to the states to determine the legality of abortion, Senate Bill 1's general abortion ban continues to recognize an exception for "when reasonable medical judgment dictates that performing the abortion is necessary to prevent any serious health risk to the pregnant woman or to save the pregnant woman's life."

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