Defensive Certiorari Grants

Supreme Court watchers know all about "defensive certiorari denials." This is when a Justice votes to deny review of a case because she is worried that a grant will lead to a bad outcome on the merits.

The Alabama abortion law just enacted may present the opposite situation. The lower courts will make quick work of the statute, relying on Roe v. Wade and Planned Parenthood v. Casey. Then Alabama will file a certiorari petition. At first glance, you might think that the four liberal Justices would vote against review, fearing that the Court will overrule these cases.

They may instead view this as the best vehicle for reconsidering Roe and Casey. Here's why. First, forcing the Court to consider this issue in a presidential election year will put more pressure on the Court's uncertain members about whether they want to walk the plank on this issue. Second, the Alabama law gives the Court no way to evade the basic question. Neither statutory construction nor a narrow ruling is possible for a law that expressly bans all abortions with only one exception. Third, the lack of exceptions and the stiff criminal penalties make the Alabama statute an especially unattractive case for the Justices interested in narrowing abortion rights.

All three of these reasons might explain why five Justices would deny review of Alabama's certiorari petition. But only four Justices need to vote yes. Indeed, you could even argue that they should do so after the District Court enters its inevitable judgment (assuming one party files a petition). After all, what will review in the Eleventh Circuit add to the story? Basically nothing. So don't be surprised if the case gets to the Court quickly.