Wednesday, May 11, 2022

Dissents I Would Like to Read in Dobbs

Joseph Fishkin

I don’t make a habit of imagining dissenting opinions. But then, the Supreme Court doesn’t make a habit of leaking possible majority opinions. And so, I’ve been thinking about what kind of dissenting opinion(s) in Dobbs I would want to see. At the outset I want to be clear that, unlike several recent conservative leakers from inside the Supreme Court (!), I am not interested in attempting to influence the Justices (their clerks are not likely to read this, and I assume the dissents have already been written anyway). Instead, my thinking is that the oddity of the fact that we have all read a draft majority opinion and now are waiting for the final version puts us in a kind of liminal place, and in that place, I want to invite you, the reader, to explore a kind of counterfactual with me—one that gets to the question of what dissents are there to do. (And that, in turn, depends on questions about what the Supreme Court is there to do.)

Here’s the counterfactual: What might a dissent look like in Dobbs, if we are beginning to move into an era of less asymmetric constitutional hardball—specifically, an era in which the liberal Justices begin, tentatively at first, to start making some of the choices in dissent that conservative Justices like Antonin Scalia made routinely in dissent (for other examples of such choices, see the Obergefell dissents). Specifically I am talking about the choice to write a dissent that speaks not only to one’s colleagues or to “history” or future generations, but to the present world of constitutional politics and argument outside the Court.

The Dobbs draft has, I think, laid to rest the illusion, to the extent that anyone other than Justice Breyer was still laboring under it, that this Supreme Court sits above politics. What I mean is that Dobbs is the result of a multi-decade-long, explicit, open, partisan political campaign aimed specifically at reversing Roe—a campaign that was sometimes frankly transactional, in its specific brand of politics, with politicians treating the religious right as a single-issue constituency whose support could be bought through promises to appoint judges who would overturn Roe. That long campaign culminated in a Republican candidate for President literally running on a promise to select Justices exclusively from a preselected list of individuals who would, according to his political promise, “automatically” overturn Roe. It is impossible to construct a hypothetical much stronger than real life here, in support of the point that I hope liberals will now accept (and which conservatives never doubted), that politics—high politics, constitutional politics, call it what you’d like, but it’s politics—is a central driver of what goes on in the Supreme Court.

BTW, the dynamics of constitutional politics outside the courts is a central theme of my book with Willy Forbath, The Anti-Oligarchy Constitution, which has recently been the subject of a genuinely terrific symposium on this blog! Stay tuned for our response to the participants in that symposium—slightly delayed, due to several factors that include the sudden appearance of this wild Dobbs opinion draft…

Ok, without further ado, here is what I would like to read in a Dobbs dissent:

1. The signal to the public that things are not ok

The dissenters need to indicate to the public from their special vantage point inside the Court that this majority opinion is not the outworking of transcendent principles of constitutional law and public reason. Instead, this opinion is exactly what it reads like: a work of outcome-oriented partisan constitutional politics. (Of course, that is how some conservatives now wish to boldly re-imagine Roe itself, a largely-uncontroversial-at-the-time 7-2 opinion written and joined mostly by Republicans, most of them Nixon appointees.)

There are a variety of ways to signal tersely that things are not ok. All involve abandoning some of the usual liberal politesse. This would be a good day to delete the word “respectfully” in “I respectfully dissent,” but more is needed. I think the Justices could certainly do worse than simply write: “Today’s decision was egregiously wrong the day it was decided.”

2. The signal to the public that there is politics going on here

Justice Sotomayor asked, at the oral argument, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” The dissenters are, I think, obligated to expand on that point in writing in dissent. It would seem incongruous for a Justice to discuss in a dissenting opinion the fact that the President who appointed the majority of the Justices in the five-Justice majority had run on a pledge to appoint people who would “automatically” overturn Roe. But since that is exactly what happened, and Roe is being overturned solely as a result of personnel changes on the Court, I would like to read some acknowledgment of this in the U.S. Reports.

The usual liberal approach to this situation would be to eviscerate the majority’s shoddy reasoning and let that evisceration speak for itself. That’s what I expect to read. But it would be more useful, in order to help right the ship of American constitutional politics, which is taking on a lot of water at the moment, to say something clear and straightforward about how this overturning of precedent is due solely to changing personnel on the Court, where much of the politics of who is appointed to the Court has centered on the conservative and (increasingly over time) partisan Republican political project of overturning this specific case.

Again, I don’t expect to read this in the U.S. Reports, because liberal Justices generally won’t do that sort of thing. But it is what keeping faith with the Constitution obligates the liberal Justices to do, if they believe that their constitutional obligation includes helping the public understand why their fundamental rights and equal standing are being eviscerated by a politicized Court.

3. The reasoning: building a foundation for a future constitutional politics of equality and freedom

A standard part of any dissent is to explain why the majority is wrong. Fine.

But there’s more than one way to do that. It matters, obviously, to do the work of internal critique and to do it crisply and well—that is, to expose the gaping holes in the reasoning of the majority on the majority’s own terms: the demonstrably false history, the wild (but typical Alito) big appendix full of old laws that in fact did not prohibit abortion prior to quickening (!), the surprising lack of any serious attempt whatsoever at an originalist justification for the result in this case, etc. But it would be a mistake for the dissent to occupy itself exclusively with internal critique of the Court’s argument, as Justice Stevens did in his dissent in Heller.

Instead the dissent needs to engage with the core constitutional arguments at stake in this case that the majority basically decides to ignore. The most obvious of these is the equal protection argument, the subject of an excellent amicus brief. Not all women are pregnant all the time (and indeed, a few men occasionally are pregnant these days), but to treat those facts as sufficient to dispose of the equal protection argument is a serious overreading of Geduldig (a case that in any event was egregiously wrong the day it was decided, as Congress concluded when it passed the Pregnancy Discrimination Act). The Alito majority opinion clings to Geduldig tenaciously, but even if Alito’s overreading of that case were right which it is not, it takes some kind of gall to insist in this opinion of all opinions that we need not entertain arguments about the rightness or wrongness of a precedent because we are just bound by it; the issue is “foreclosed.”  (Really, in Dobbs, you’re going to rest exclusively on stare decisis? Yes, see p.10–11.) Alito is willing to spend plenty of time trolling Justice Ginsberg for her view that Roe came too early, but glaringly unwilling to engage with her actual critique of Roe, which was that it needed to respect women’s equal citizenship under the Fourteenth Amendment. My point here is not that the dissent needs to go through all of that (although it would be fine if it did). My point is instead that the dissent needs to engage seriously with the equal protection question that the Alito opinion clumsily hides behind Geduldig to avoid. That serious engagement is a signal to the public about how to understand the stakes of the case.

I also think it is important for a dissent to engage with and elevate the Thirteenth Amendment argument that shows the public the historical centrality of forced pregnancy and forced motherhood to the institution of slavery that we abolished through war and Amendment. In a swirling maelstrom of bad-faith arguments about abortion and Reconstruction, this persuasive argument deserves some serious discussion in a dissent. Particularly since it is far more originalist than anything in Alito’s opinion.

Basically my point is that the Dobbs dissents should avoid what I think was something of a strategic error in the Heller dissent. A Dobbs dissent should not confine itself to showing that the majority’s arguments are flawed on their own terms. It needs to reach out and show that a different set of constitutional ideas is available for the public to grab hold of, and for Congress and state legislatures and state courts to consider, as we begin to build a future constitutional politics on foundations from the Ninth Amendment to the Thirteenth to the Fourteenth, in response to the Court’s decision in Dobbs.

4. The concessions: abortion as part of the medical and social fabric, and the Court as a political institution

A less-important but still important task of any dissent is to point out the concessions the majority is making. I will highlight two of them.

(a) A dissent should note that Alito seems to be conceding that abortion is part of the fabric of social policy that supports women’s health and lives. Does he say it that way? Obviously no. But because Alito is Alito, he cannot resist helping himself to a range of arguments that can fairly be paraphrased “abortion is unnecessary now because of the existence of lots of other government policies supporting women that my allies and I have long fought against tooth and nail and will continue to do our best to undermine.” It would barely even qualify as self-parody if he had come out and said, “Now that women are admitted even to Princeton [which of course I bitterly opposed—sorry Sonia] they have full equality and therefore no longer are in need of abortion.”

In this vein, Alito invokes legal protections against pregnancy discrimination (there he’s of course helping himself to the congressional overruling of his beloved precedent, discussed above, Geduldig). He cynically invokes the FMLA (which, again, recall, his side tried to kill as an exercise of Congress’ Fourteenth Amendment powers until Rehnquist defected in Hibbs). The coup de grace is when Alito actually cites the Affordable Care Act (n.44, p33) to support his thinly-veiled endorsement of abortion opponents’ claim that women are protected from the economic costs of pregnancy (which is laughable by the way—pregnancy is very expensive even if you have health insurance!). Whatever protections women have as a result of the ACA, they sure would not have if Justice Alito had had his way in any of several successive challenges to the ACA; and of course, a lot more women would be protected today from some of the economic costs of pregnancy that Justice Alito is discussing if he and his colleagues hadn’t kneecapped the ACA in Sebelius by cutting millions of women out of the Medicaid expansion. This is all vintage Alito, the work of a man without any excess of self-awareness or shame.

What I think the dissent ought to do is this: point out the way these points illustrate—even through the arguments of abortion opponents that Alito insists on inscribing into the U.S. Reports—that abortion is actually part of a continuum of policies that support women, in their physical health, economic security, and participation in the workforce. Alito here is favorably citing arguments that these policies are good substitutes for one another—if you have enough of these other supports, you don’t need abortion. That’s not a very good argument, but it does at least implicitly concede the connection between abortion and the fabric of these other policies.

(b) Alito also offers two “don’t worry, nothing to see here” sections (31–32 and 62) in which he appears to attempt to contain the reach of Dobbs by arguing that abortion is unique, and therefore other unenumerated rights under the Fourteenth Amendment such as contraception, same-sex marriage, and so on are not going to be “undermine[d] in any way” by Dobbs’s frontal attack on the reasoning on which all such cases depend. “Nothing in this opinion should be understood to cast doubt” on any such issues, he writes. This move is similar (and similarly conspicuous in its lack of citations or supporting arguments) to Justice Scalia’s famous paragraph in the Heller majority opinion asserting that lots of familiar, common-sense gun regulations are all going to be fine. (Narrator: they are not all fine.)

Still, in my view, it is true that the Court is not going to overturn, for example, Loving v. Virginia. The reason for that is that Alito’s opinion in Dobbs is an act of conservative constitutional politics, whose reasoning is backfilled to support the prejudgement of the case (whose prejudgment was also the political prerequisite for the appointment of most of the Justices on the Court). In that situation, a better guide to where future opinions will go is to get a read on conservative politics, not to reason in a lawyerly way about the reach of the decision’s reasoning.

My point here is simply that a dissent ought to point this out. This Dobbs majority is part of a long-term political project. If it’s true that we ought not to worry, in the case of a given precedent, that it will also be vulnerable to Alito’s Glucksbergization of the Fourteenth Amendment, then the reason we ought not to worry about it is that we all know this Dobbs majority opinion is an act of constitutional politics more than it is an outworking of any defensible principles of constitutional law. It is within the power of the dissenters to give the American people a window into this fact. I think it is their obligation to do it.

Older Posts
Newer Posts