Some Quick Observations on Oral Argument in Dobbs

Published December 1, 2021

National Review Online

I’m going to try to avoid reading too much into the tea leaves, so here are some tentative observations:

1. Nothing from Justices Thomas, Alito, Gorsuch, Kavanaugh, or Barrett set off any alarm bells in my mind. On the contrary.

By asking whether it would have been proper for the Court to overrule Plessy v. Ferguson one year later, Justice Alito effectively established that a ruling’s egregious wrongness can suffice (or at least go very, very far) to justify its overruling.

Justice Gorsuch on two or three occasions seemed to signal that he sees no middle ground between reversing Roe and Casey, on the one hand, and applying them to invalidate the Mississippi law, on the other.

Justice Kavanaugh repeatedly emphasized that Mississippi’s position is that the Constitution is neutral on the matter of abortion and that Mississippi, in seeking the overturning of Roe and Casey, was simply arguing the Court shouldn’t be taking sides on the matter.

Justice Barrett inquired why the recent widespread adoption of safe-haven laws (which allow mothers to deposit their infants at, say, hospitals without any liability) doesn’t dramatically reduce women’s interest in avoiding parenting burdens.

2. The Chief seemed to be searching for a middle ground that would enable him to vote in favor of the Mississippi 15-week ban without overturning—or at least without declaring the overturning of—Roe and Casey. If I understood him correctly, he advanced the position that the viability line, which Casey repeatedly declared to be the “central holding” of Roe, was mere dictum (i.e., not part of the actual holding) in both cases.

On that theory, the Chief would consider himself able to substitute a new line in place of viability. But what possible line could he justify? In his noteworthy concurring opinion in Citizens United v. FEC (2010), he rejected the “false premise” that “our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law.” He instead insisted that the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”

I therefore remain hopeful that the Chief will conclude that there is no middle ground and will lead a supermajority of justices to overturn Roe and Casey.

3. I found the questioning from the liberal justices to be surprisingly ineffective. Justices Breyer and Sotomayor were very longwinded. Sotomayor sounded much more like a Planned Parenthood spokeswoman than a justice. I can’t imagine that any of her assertions had any persuasive force with her colleagues. (I think that she said at one point that only a religious belief could lead you to think that the Constitution doesn’t protect abortion. Even if she said or meant that only a religious belief could lead you to oppose abortion, her assertion is absurd.) [Correction (2:40 p.m.): I gather from the transcript (pp. 29-30) that Sotomayor is arguing that it’s a “religious view” to believe that abortion takes the life of a human being.]

There was a particular line of questioning that I feared would be very awkward for Mississippi’s solicitor general—further affiant sayeth not—but to my great surprise no one pursued it.

4. There was, appropriately, no interest in dismissing the case as improvidently granted because of Mississippi’s supposed “bait and switch” on seeking the overturning of Roe and Casey. Only the Chief inquired about the matter, and he made clear that he rejected the dismissal option.

Ed Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is a regular contributor to NRO’s Bench Memos. He is co-editor of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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