Legal Review: Dobbs and the Holdings of Roe and Casey

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to this Federalist Society virtual event, as this morning, kind of an odd time, but I appreciate everyone joining and adjusting for this great event. It's March 17, 2022, St. Patrick’s Day. We’re discussing "Dobbs and the Holdings of Roe and Casey." These are the abortion -- Dobbs is the abortion case currently before the Supreme Court, and Roe and Casey are the most relevant precedence that the Court is contending with. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our experts.

 

      We have two great experts, distinguished law professors. They’ve both been commenting on this case recently, and Professor Claeys, in particular, has a long law review article coming out, I believe, in the Georgetown Journal of Law and Public Policy on this topic. It’s my pleasure to introduce them both briefly, and then they’ll take it from here. Professor Eric Claeys is a Professor of Law at Antonin Scalia Law School of George Mason University in Virginia, and Professor Richard Re is the Joel B. Piassick Research Professor of Law at University of Virginia School of Law. Sorry that I mispronounced that, but they’re both in Virginia. So thank you both for joining us. Thank you all for joining us.

 

      Professor Claeys is going to outline his argument. We’ll hear a response. We’ll be looking to you, the audience, towards the end of the program for your questions, so submit those through the chat, either now or towards the end. Thank you much. Professor Claeys, the floor is yours.

 

Prof. Eric Claeys:  Thank you, Nick, for that introduction, and I want to thank The Federalist Society for putting on this webinar. And I thank Richard also for commenting. He’s very generous with his time to do so, and I look forward to hearing what he has to say. In this webinar, Richard and I are going to talk about some principles of jurisprudence and, in particular, the principles of jurisprudence to help a judge in a new case know what precedential force an old case and passages from that old case have. And we’re going to talk about how those principles apply to Roe v. Wade, maybe also a case -- Planned Parenthood v. Casey, and the case before the Supreme Court now that Nick mentioned, Dobbs v. Jackson’s Women Health Organization. Roe, I think, is understood as making it unconstitutional for a state to ban abortions before the point at which fetuses that, in pregnant women’s wombs, are viable.

 

      And the law under challenge in Dobbs bans abortions after 15 weeks, and, depending on how one understands the point of viability, that’s somewhere between 9 and 12 weeks before the viability threshold marked off in Roe. So, if Roe has precedential force, then the law in Dobbs is unconstitutional. That doesn’t stop the Court from going in and -- that doesn’t require the Court to follow Roe. The Court could overrule Roe. And that doesn’t stop the Court from going in a different direction, but, if Roe has precedential force, the Court has to choose to overrule Roe or to say, “We are making really major modifications to the Roe regime.” But some of people out there have suggested that Roe might have precedential effect or precedential sweep a lot narrower than I just suggested it does.

 

      And Richard has done some of this -- he made some of these suggestions in blogging on his website and also an op-ed in the Wall Street Journal about the time that the Dobbs case was being argued at the Supreme Court. And maybe -- Richard and I, we’re academics; we like to think that what we write, what spills off our pens goes right into policy. But Chief Justice Roberts has a lot more precedential force than either of us does, and, during the oral argument at Dobbs, he floated an idea that maybe Roe’s holding is a lot narrower than anybody has thought for the last few decades. So I want to just lay out where I think Richard and I agree and disagree, and then I’ll get more into my argument. I admire Richard’s work on precedence in scholarship. He has a fine article in the Harvard Law Review about how to apply principles of precedence when a court is fractured, and there’s no one majority of opinion.

 

      That came out in the Harvard Law Review. And he has a recent article called, “Precedence is Permission,” in the Texas Law Review that argues that courts should understand themselves as having relatively wide discretion to go in directions different from the holdings of earlier cases. And I think, in a lot of situations, maybe in most situations, I’m sympathetic to that, to that point of view. I think Richard and I both are -- embrace relatively minimalist understandings to the judicial power. We want holdings to be small bore because we want future courts to be able to make their own marks in later cases. But it’s hard to apply that kind of view when some earlier court has shot with a wide bore, and Roe v. Wade is that kind of case for reasons I’m going to explain. Roe’s holding is a very sweeping holding, and it touches on a lot of different kinds of conduct.

 

      And, so, then, the question that arises, if a court -- can a court go back and read a case with a wide holding, that really have had a narrow holding all along? Or, if a court -- or an old case is a wide holding, can a new court render narrow holdings on the basis of that wide holding? And those kinds of problems are lurking in the background of the Dobbs case. And, so, what I’m going to argue -- in my forthcoming article and in these remarks, what I’m going to do is to explain why Roe indeed has a wide holding and how that holding creates challenges for the Supreme Court and Dobbs. Now, I’m not saying that the Court has to follow Roe or that it has to overrule Roe. What I am saying is that, if one applies relatively faithfully standard principles for understanding what a holding is, one has to see that Roe has a wide holding, and then the Court has to be honest, which it’s doing, to that wide holding.

 

      And with that, then, I am going to present the rest of my remarks with a PowerPoint. Give me just a moment to pull that up. It’s worked really, really well when I -- here we are. Okay. So folks should see my screen now and should see a picture of a banana. We’ll get to that in a minute. So this is the basis for my -- the title of the talk and my -- a quick plug or promotional for the article.

 

      The name of the article is “Dobbs and the Holdings of Roe and Casey,” forthcoming in the Journal of Law and Public Policy. And there’s not a final versions online now, but a close-to-final version’s available on the website. Go to the subfolder for Volume 20, Issue 1. And the main claims in the article and this talk is that, if one follows standard principles for restating precedence, Roe has three holdings. And the viability threshold is necessary to two of them, and those two holdings and the viability threshold itself were relied on in Planned Parenthood v. Casey and at least another 11 Supreme Court cases. I can take questions on those 12 cases later in the question-and-answer period.

 

      I’m going to focus this talk on Roe and Dobbs. And as long as Roe’s holdings have precedential value, I think it likely that the law under challenge and the Dobbs case is unconstitutional on its face. And, so, let me just set the stage real quickly to talk about the Dobbs case. So, in 2018, Mississippi enacted an act called The Gestational Age Act. The act prohibits abortions in Mississippi after 15 weeks, subject to two exceptions. One of those exceptions is to save the life or the health of pregnant women, and the other exception is it entitles a woman to choose abortion if the fetus has fetal abnormalities. The district court and the Fifth Circuit both declared the act unconstitutional on its face. They followed what I’ve been calling as conventional wisdom that Roe makes it unconstitutional for states to ban abortion before viability.

 

      Chief Judge -- oh, sorry -- Judge Patrick Higginbotham is the fifth judge in the Fifth Circuit. He wrote the lead opinion for the Fifth Circuit. He said -- and you can hear the sarcasm or the weariness in his voice when he says, “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability.” But then, that raises the question whether Roe really held that pregnant women have rights to choose abortions before viability. And you could ask lawyers what they think Roe held, and they associate Roe v. Wade with a trimester framework. And before the end of the first trimester, in this framework, a state may not restrain the right to elect abortion on any ground.

 

      In the second trimester, states may keep abortion safe, but they can -- may not make abortions illegal. States may not restrain abortions, except incidentally, while they’re trying to protect maternal health, maternal life, and a couple of others’ interests as well as that we can talk about in Question and Answer. But then, in the third trimester, states may protect fetal life, and they may do so even by going so far as to prohibit abortions. So to know what Roe held, one might also ask what Roe said it held. And after Roe presented the trimester framework and summarized it, Roe said, “This holding is consistent with the relative weights of the respective interests involved.” So Roe called this trimester framework a holding of the case.

 

      Now, the holding might have been narrower, and here is where Chief Justice Roberts [inaudible 10:02]. At oral argument in Dobbs, Chief Justice Roberts suggested that Roe entitles women only to a fair opportunity to get abortions and that Roe has nothing to do -- Roe didn’t hold anything about viability. In question to the counsel for the State of Mississippi, Scott Stewart, Solicitor General from Mississippi, the Chief Justice said, “I know what it, Roe, said about viability. Was viability an issue in the case? I know it wasn’t briefed or argued.” The suggestion was, if viability was not briefed or argued, it was not part of the case’s holding. Now, I think that there’s problems in what the Court said about Roe in the Roe case and what the argument that Chief Justice Robert’s was experimenting with in oral argument.

 

      And to explain why, I need to say some things about recessions and bananas. So, about 45 years ago, we were suffering in another period where there was -- there weren’t as many jobs as we’d like, and there was inflation. Alfred Kahn, a famous economist, was the chairman of the Council on Wage and Stability -- Price Stability for President Carter. Kahn got criticized by Carter because Kahn would give speeches, talking about the recessions that kept happening in the ‘70s. Carter was irritated by these mentions of recessions because, for elected politicians such as himself, it was awkward to hear one of his economists saying that the country was going through recessions. Kahn, being a good servant, a good employee, took his boss’s orders, stopped using the word, “recessions.”

 

      But Kahn, being an honest economist and a little bit sarcastic, kept talking about the phenomenon of recessions and just called it “bananas” instead. And, so, he would say things like, “Between 1973 and 1975, we had the deepest banana we’d had in 35 years, and, yet, inflation dipped only very briefly.” So why is that funny? It's funny because words have meanings, and, sometimes, people want to use a word with an idiosyncratic meaning to do something that might be hard to rationalize or to justify if you use words in the more ordinary meanings. But, if one does that, Kahn was pointing out, that’s -- it seems a little ridiculous because one does violence to ordinary words or meanings, and one is doing so with  not -- for reasons that seem less than forthcoming, less than candid. One’s trying to use words in a way, in a strange sense, to justify policies that might be hard to justify if you use words in their ordinary senses.

 

      Now, in Dobbs, nobody’s trying to use the word “banana” to talk about holdings. But it could be that the Roe case and the theory that the Chief Justice experimented with in Dobbs, they are using the word “holdings” in a sense that are idiosyncratic or off from what lawyers understand to be holdings. And, so, the same concerns that we have with the banana episode might be coming back in Dobbs. So, if one were to say that Roe didn’t -- held something different from what it held, according to standard principles of -- about jurisprudence with precedence, one might be using the word “holding” in a sense that’s intention with ordinary meanings, and one might be doing so to make a major change to abortion law -- rights law without saying that we’re, in effect, overruling or redrastically modifying what Roe said. So, to understand those possibilities, we have to go back to principles of jurisprudence and ask, “What is it that makes a proposition of law a holding?” and, again, the relevant rules of law or principles of jurisprudence. And, for the article I wrote, I found very helpful and reliable a textbook on jurisprudence by an English scholar, John Salmond, chapter 8 of it.

 

      And, in Salmond’s account -- and Salmond here is restating common law principles for spotting a holding in an earlier case. And, under these principles, you have to start with a judicial opinion and then the judgment of that -- that the judicial opinion’s written to support. And then, a judicial opinion’s going to have lots of different passages, different statements, different arguments. And those statements or arguments can be slotted into two groups. There are rationes decidendi, Latin for “reasons for deciding,” and then, there are obiter dicta. That’s Latin for “statements made on the wayside; statements made offhand.”

 

      And a proposition that’s a ratio decidendi has precedential effect or value. A dictum does not. And a proposition constitutes a ratio if it’s necessary to the judgment; it supports the judgment. And a proposition constitutes a dictum if it’s not necessary to the judgment. And, again, I’ve relied on John Salmond’s treatise, but the US Supreme Court relies on the same basic distinction. It did so most famously in Cohens v. Virginia in 1821, Supreme Court Constitutional Law case. The Court refused to follow some passages from Marbury v. Madison, saying that, basically, that they were dicta.

 

      And then, in a recent case in which the Court overruled an earlier case in sovereign immunity -- the case of Seminole Tribe of Florida v. Florida -- the Court relied on the ratio-dictum distinction to explain why it was bound to consider -- either reaffirm or to overrule the case that was being asked for reconsideration. So, to understand what the holding of Roe was, we need to understand what judgment Roe indeed handed out. And the key Texas statute prohibited abortions throughout Texas at any stages of pregnancy. And the Roe case affirmed a judgment by the district court, and the judgment of the district court issued a declaratory judgment. And the declaratory judgment declared the key statute and four companion statutes unconstitutional on their faces. I said in my overview remarks that Roe is a case with a wide-bore holding.

 

      A case shoots with a wide bore if it declares a statute unconstitutional on its face. That kind of holding is not just saying that the law’s unconstitutional as applied to the particular litigants. It applies more broadly. The Court confirmed that it was issued in such a wide holding, a judgment of facial invalidity with passages like this one here. The Court said, “Our conclusion that Article 1196 is unconstitutional means, of course, that the statutes, as a unit, must fall.” Must fall is a way of saying they’re invalid on their faces. They’re unconstitutional on their faces.

 

      And when a statute’s declared unconstitutional on its face, it cannot be applied against anyone, even when it could be applied to conduct to which it might be applied constitutionally. So then -- so, if we know that that’s the judgment, so, we want to know, is the trimester framework, was that a holding of Roe? And, so, we might ask, is just a basic trimester framework itself a holding of Roe? I don’t think it is. I think it’s a dictum, for -- and we’ll see why when we get to what I think Roe’s main holdings are. And the fact that states -- that pregnant women are immune from having their abortions interfered with in the first trimester, that’s probably dictum.

 

      I can see an argument that maybe it’s not, but the actually judgment the Court handed down, the arguments in support of the judgment didn’t make a lot of heavy -- didn’t make heavy weather about the first trimester. What about the passages saying that states may only regulate during the second trimester to protect maternal health? The discussions about incidental health regulation, that’s dicta in the Roe case. But the very next case in the Supreme Court reports and in the US reports, dictum became a holding in Doe v. Bolton. And I’m happy to talk about that in questions. But the idea that states may prohibit abortion in the third trimester, I think, that’s a holding of Roe because that holding contributed part of the Court’s -- to part of the Court’s arguments when it rendered one of the holdings -- the holdings specifically why the statute’s challenge were unconstitutional on their face.

 

      So, some parts of this framework do contribute to the judgment, but lots of other parts don’t and are dicta. So, to understand what the real holdings were, we have to ask what justified the declaratory judgment of facial unconstitutionality. And I think you could always restate the propositions of law that are held in a case at higher levels of generality in more specific laws. I think the propositions here can be restated as three broad propositions or seven specific propositions. And in these slides and the article, I call the broad propositions, “the holdings,” and the narrow ones, “ratios, or rationes, that contribute to those holdings.” And here are the three broad propositions, the three holdings.

 

      First, the liberty term -- the term “liberty” in the Fourteenth Amendment Due Process Clause entitles women, pregnant women, prima facie, to choose abortion. And second, the key statute threatens due process or violates due process rights, in some applications, and it does -- it prohibits abortions before viability. And, finally, the core -- that statute and the other companion statutes are all unconstitutional on their faces, and they’re unconstitutional because they prohibit abortions before viability in significant or substantial number of applications. So the first holding, I think, is straightforward enough. It’s familiar from Roe. Here are a couple of quotes from the case, making it clear. This quote, it elaborates from the Fourteenth Amendment Due Process Clause of liberty, personal liberty, leads to the right of privacy, and the right of privacy is “broad enough to encompass a woman’s decision whether or not to terminate pregnancy.”

 

      And I call it a prima facie right because, at other parts of the opinion, the Court says, “That this right is not unqualified.” And that holding is one proposition of law. It’s its own distinct ratio. So, in the second holding, the Court says that this prima facie -- the key Texas statute violates, in some of its applications, the due process abortion right. Now, to get there, the Court says, first, states can, in some instances -- they have constitutional authority in some instances to restrict the right to abortion. So the right’s not unqualified. It must be considered again important state interests.

 

      But, then, the Court says, “To just look at whether a state has justification to police abortion, it needs to look at the particular kind of statute and the possible justifications for it.” And the Court pigeonholes or classifies the key statute. It’s a criminal abortion statute. It prohibits abortions. The Court then concludes that the key statute is violating the Fourteenth Amendment because it prohibits abortions without pregnancy stage. But you might then ask, so, why does that create constitutional problems?

 

      The problem is in what I call the fourth ratio or the viability ratio. If the state’s interested in protecting fetal life after viability, it may go so far as to prescribe abortion during that period, after viability. The state’s interests of protecting fetal life turns on whether the fetus is viable. After viability, the state interests prevails. Before, it does not. The viability is a necessary element of this holding.

 

      So, then, the third holding on facial unconstitutionally relies on principles of whole overbreadth. And, normally, when a court considers a constitutional challenge to a state law, it looks at how the laws apply to the challenger before it and decides whether the law’s constitutional as applied to that challenger in conduct. But, for some rights, the courts let challengers argue that the law shields constitutional conduct of third parties, parties not before it. And they, then, declare the laws unconstitutional on their faces. And the paradigm examples of these kinds of rights are free speech rights and, then, abortion rights. Roe is the case that applies overbreadth principles to abortion rights.

 

      And when a right is protected by overbreadth, the most important inquiry courts make is to ask whether the law shields constitution or protected conduct and applications that seem substantial in number. In relation to conduct, the law could constitutionally prohibit or prevent. And the Court finds in Roe that overbreadth -- abortion rights are protected by overbreadth principles when it says that the key statute sweeps too broadly; broadly’s a term apart from overbreadth. And the Court concludes that the key statute and its companion provision are unconstitutional. Why so? Because of the viability ratio again.

 

      The Court says, “If the state’s interested in protecting fetal life” -- actually, let me go to the next slide to explain this. The Court could have been a lot clearer about what it was doing, but the Court concludes the key statute, Article 1196, makes no distinction between abortion performed orally in pregnancy and those performed later. The early performed abortions are the pre-viability abortions, in overbreadth doctrine, the protected abortions. The ones performed later are the post-viability abortions. In overbreadth doctrine, the ones that Texas could constitutionally prohibit. And, so, the Court’s saying in this passage that the number of unconstitutionally prohibited pre-viability abortions seem substantial in relation to the number of post-viability ones. And, so, the viability ratio’s necessary again.

 

      So, under the second holding of Dobbs, a law that prohibits abortion is unconstitutional, and, so, its likely applications prohibit abortion before viability. The Gestational Age Act prohibits most abortions after 15 weeks, before viability. Under the third holding, a law that prohibits many -- a substantial number of pre-viability abortions is unconstitutional on its face, and The Gestational Age Act is prohibiting a substantial number of abortions before the 27^th week. For reasons I can explain in Question and Answer, Casey doesn’t change things.

 

      Now, that doesn’t -- again, that doesn’t mean that the Court must follow Roe. The Court could overrule Roe. But the Court, I think, using these principles about holdings, must follow Roe, say that Roe is in conflict with a different result and overrule Roe, or say that Roe is in conflict with a different result and then announce it’s making substantial modifications with Roe. And that’s the main point of the article. And, with that, we can take things over to Richard.

 

Prof. Richard Re:  Well, thank you so much, Eric, for involving me in this event and for writing this illuminating paper on a very important topic. I’ve learned a lot from it. In fact, I’ve made a few notes here based on your remarks today, which, I think, even further improved my understanding of these issues. So let me start by just describing my orientation on this debate because it’s a little bit unusual, I think, among the voices that are participating in the Dobbs controversy or public discussion, because my position is skeptical of a big overruling. But I’m not taking that position because I have an absolutist view of stare decisis as Eric, I think, very effectively summarized before. I have a more flexible view about precedent does and can do and a limited view of how constraining it can, or it should, be compared to a lot of commentators.

 

      So, then, you may ask, well, if I’m not taking a hardline view on stare decisis, why am I skeptical or critical of the prospect of a big overruling in Dobbs. And the reasons, again, as they are indicated, has to do with process, deliberation, and, especially, gradualism. When the Court makes really big changes, I think it should, generally as a rule, do so incrementally. And, in fact, that what the Roberts’ court has done time and again, so I’m not really saying anything contrary to actual practice here. In many contexts, in the First Amendment, including speech and religion, and involving voting rights and all kinds of other things, the Court has adopted a gradualist approach under this Chief Justice, including just last year in a recent case, so it’s not an old phenomenon either. And I think the case for gradualism is extra strong in Dobbs for, at least, three reasons.

 

      One is that the advocates themselves have taken very hardline views in this case, possibly, I think, at least in part, because the political valence of the case. And, so, when you have the parties not representing the full gamut of options, I think that’s a reason for the Court to be extra hesitant. Also, at the oral argument, the justices were very reasonably asking questions about how the undue burden standard would apply, and the advocates really didn’t have anything to say about it, except to point out that it wasn’t an issue on the facts or in the briefing in their litigation, which, I think, really indicates that there’s a disconnect between what the justices want to know about and what the advocates in the case are prepared or interested or even able to give guidance on. And third, and finally, it does seem like almost any view of stare decisis cares in some way about reliance -- now, the reliance on past decisions. Now, how that figures in and the weight it’s given varies a lot. And it might not end up being huge, but, if there’s ever a time for reliance to matter, it would seem like a situation like this where you have an individual right that’s been, as Eric said, affirmed and re-affirmed.

 

      As it plays, it would seem like that interest would apply and dictate caution. And, again, I’m not saying that means things can’t be overruled on general reliance, but it’s a red flag for going big. I also add, Eric made this point about worry about doing violence to ordinary meanings, and I think that is a real worry, and I think -- I am sensitive to that concern. On the other hand, part of the way that the Roberts’ court has achieved gradualism time and time again is by creatively reading things in ways that critics might characterize negatively in the way that Eric did. And, so, I think that there’s a more positive way to spin this idea of being creative with language that, indeed, is common practice with the Court. So that’s where I’m coming from.

 

      So given that background, also as Eric mentioned, there’s lots of different ways of achieving gradualism. There could be, for example, a DIG or dismissal of this case because it didn’t pose a traditional basis for a grant and because the state has, at least, altered its emphasis, to put it mildly, in the case by initially pitching the case as a limited one and then going very big after it got surgranted. Also, the Court could hold a case and hear argument or re-argument in a way that allows it to directly address this issue of the meaning of the undue burden standard. Or the Court could engage in a partial overruling of various types. I think Eric expressly indicated that he is arguing here, at least, as not ruling out that possibility, as long as the Court candidly does that. I see him nodding here.

 

      And I’ll -- just to draw that out a little bit. So, one possibility is that the Court has stated the existing framework is overruled to the extent it would preclude the state law from being implemented. Or another way to go is the Court could say, “Well, existing case laws overruled to the extent that it denies that the key principle in this whole area is undue burdens.” And the undue burden standard is really the thing that gives rise to this prohibition on broad bans on pre-viability abortion. So, either of those things -- they’re on the table, I think, and maybe we would or wouldn’t ultimately support them, or the Court would or wouldn’t ultimately support them, but they’re not undermined, I think. None of the things I just said, I think, is undermined by Eric’s argument. I just want to clarify that.

 

      And I think he expressly indicated that. He’s nodding here. Yeah. Okay. So, then, what is the possible nub of disagreement then? Well, it’s the -- it’s a specific avenue of gradualism that Eric is suggesting as block off. And the specific avenue of gradualism is the idea of this creative reading of precedent that would then not -- that would reach the merit so it doesn’t dismiss the case or re-argue the case. It’s not taking that path. So it reaches the merit, but it also doesn’t expressing overrule anything, even in part.

 

      And I think that Eric’s argument on this -- in this point, it arguably takes up in his paper, is very strong. And it’s also illuminating in ways because it picks up on features of the case reasoning that I think are underappreciated or, at least, were unappreciated by me before I read the article. And I’m going to talk about at least one of those in a moment. And, so, I think that where the article takes issue with gradualist -- pros of gradualism, I think, the article is quite persuasive. Now, having said that, I do have at least two kinds of questions internal to Eric’s argument that maybe points a residual on certainties or maybe points for Eric to elaborate and for us also to learn things precedence in general, not just in connection with Dobbs. So the first one is that Eric’s argument assumes a certain model of precedence, and he alludes to that in his presentation, and he draws on this British scholar from the early 20^th century.

 

      And it’s the ratio model of precedence, where you look to the reasoning the court gives that was supportive of the judgment, roughly. And that’s definitely a major model of stare decisis. I’m not denying that, and Eric’s also quite right as the Supreme Court, at least sometimes, has seemingly endorsed that model. So that’s a strong foundation for Eric to proceed from, but that’s not the only model of stare decisis that’s available. And, so, another potential model of stare decisis that also has a lot of support in history and -- and we also say in the court’s case law, maybe not as much but maybe. I’m not sure. I’d have to think about that.

 

      But another possible model is a more results-based model, where what you really care is what controversary was decided or maybe what the judgment was, and that’s the focus of attention. And the reason the court gives is less important. It’s illuminating, but it’s illuminating as evidence, not as -- it’s not illuminating in the way that a statutory Texas illuminating. It’s illuminating in a way that evidence of a decision is illuminating about the wisdom of a decision. And, if you have that more results-based approach, then parsing the language of the opinions is less important than looking at the constellation or pattern of outcomes over many years the Court has decided. And, again, I think that’s very consistent with almost an older, more common-law picture of precedent. I think it was more salient in the 18^th century, for example, than it is today [inaudible 32:04].

 

      And, so, if you’ve got this other first step, different from Eric’s first step, then, I think, the natural next thought is, “Well, has the Supreme Court adjudicated an abortion claim and involves a statute like the one in Dobbs?” And Eric here -- this is one way that Eric’s paper, I think, is just analytically illuminating. Eric suggested the way to code this statute, I think, is that it is a broad-based prohibition, I think, is his term. It’s not -- yeah -- it’s not an incidental regulation of access to abortion. It’s a simple, broad-based prohibition. But, on the -- yeah, that’s on the one hand, saying -- emphasizing its breadth. On the other hand, it’s not as broad, for example, as the one in Roe. It’s limited to a certain number of weeks.

 

      And, so, that combination, which, I think, is a combination that Eric identifies as a possibility through his discussion of the cases, strikes me as distinctive and possibly even unique in the Court’s precedence. Now, I -- maybe I’m wrong about that. We’re sure it’s Eric’s view on that premise or suggestion I have that it’s, at least, unusual. It’s not unique. But, to the extent that it is unusual or unique, that would seem to undermine the worry that you have to overrule precedent because what it would suggest is, if you’ve got this other model of precedent and you also view this fact pattern as distinctive or, at least, partially distinctive, then maybe the stare decisis argument against creativity is weakened or even evaded. Okay. So that’s my first big question about this. And I -- yeah, so that’s my first one.

 

      So the second and, I guess, my last big question has to do with what I view as probably the biggest contribution of Eric’s paper, which is to center the concept of overbreadth in discussions about stare decisis in general but, especially, in this series of cases. I’m not really sure of any other work does that nearly as carefully as this paper does or, rather, plays a big role in Eric’s argument. And, rightly so, because it plays a big role in the cases. And one reaction I have about that is, if Eric is right about this, as I think he probably is, being as persuasive he is about this point, does that suggest yet another plausible way of achieving gradualism in the case? So, if the Court were willing to do some partial overruling or limited overruling in this area, this is a possibility that, obviously, I get as I think we all agree that Eric’s not directly deny  in his -- or even attempt to refute in his project. But, if some partial overruling were on the table, could one avenue be to partially overrule specifically these cases on the topic of overbreadth? In other words, on who can challenge what statute and get what kind of relief?

 

      And, if that were possible, then the Court, it would seem to me, could reject the challenge here, in the Mississippi case, which is a facial challenge — previable is a facial challenge — reject that challenge without saying anything, actually, about the content of any individual person’s abortion rights at all. Now, it wouldn’t be ratifying the existing precedent on those abortion rights, wouldn’t be further entrenching it, but it also wouldn’t be undermining it. It would be leaving the abortion right question as it was before and only changing this issue of who can sue and what relief that they can get. Now, I’m a proceduralist, as I said. The issue of who can and what relief they can get is hugely important. I’m not trying to say it’s unimportant in any way. It’s extremely important, as Eric’s argument shows, but it would be an alternative to speaking directly to the topic of the content of the right.

 

      And, so, that would be a way to defer that question for a later time. And I’ll even add that some of Eric’s arguments, I think, don’t just raise this partial overrule on overbreadth as an option. I think they actually support the plausibility of it because he points out -- and this is possibly what the Chief was getting at, too, in those oral argument questions you were talking about. Eric and the Chief Justice are pointing out that the overbreadth part of -- more Eric than the Chief but both of them are pointing out that the overbreadth argument in Roe itself was extremely undeveloped by the Court, even. And maybe they stumbled into it a little bit and hadn’t fully thought it through. And Justice Thomas recently has been casting doubt on this overbreadth logic, as Eric points out.

 

      So that’s a second question for me is -- is there an ancillary application of Eric’s argument that there is actually a new offering that hasn’t been fully appreciated, though it does appear briefly in Mississippi’s brief and in the Supreme Court, I think, very briefly. But, maybe, Eric suggested that offering up should be developed and interrogated a lot more carefully. So thank you very much for including me. Again, I’ve learned a lot from this, and I made it clear through my comments. And I would love to learn more from additional remarks from Eric and any of your questions. Thank you.

 

Prof. Eric Claeys:  Nick, I want to say -- I’ll try to keep myself to a minute in response to Richard. Richard, thank you very much. That was very thoughtful. We do have some disagreements, but that’s to be expected, and a lot of the things you said, I think, are excellent. I just want to say two quick responses to two questions you asked. So, on Richard’s second question, might another way to decide Dobbs be to say, “Let’s overrule the overbreadth doctrine, or let’s overrule the overbreadth doctrine in abortion cases?” Yeah. I think that’s a promising -- a fruitful way: partial overruling. And I think that would make -- would minimize -- tamp down the stakes very much. I agree with all that.

 

      And then, on your other question, on the result-based or point-based model of precedence, I will -- I can elaborate more on Question and Answer. I agree with you that the law in Mississippi, the Gestational Age Act, is a narrower law. It’s not as prohibitory or not as broad or prohibitionist as you saw in Roe. But what you then have to do using the -- if you have that as one point on the board, you’d have to put on points on the board all the cases where the Court struck down laws, saying that the abortion needs to be provided but provided by somebody who’s certified by a licensing board or -- there’s a case that barred abortions by the salient -- and saline amniocentesis method in the second trimester. And then, the parentals were consent requirements, informed consent requirement cases, hospital requirement cases.

 

      So, if there’s a lot of other cases where the court struck down punitive incidental regulations of abortions, saying they interfered with the right too much, those interfere with the right less than the Mississippi statute did. And, so, if this case is in between Roe on one side and those other cases on the other side, what those other -- in those other cases, the Court struck down punitive incidental regulations that were not as restrictive as the right to choose as the law in Dobbs, then I think for the case -- that the law in Dobbs should go down to. And with that, I’m very much looking forward to hear what questioners in the audience have to say.

 

Nick Marr:  Great. Well, we have a couple questions in the chat. Please, a reminder to the audience, send your questions via chat, and we will take them now. So we’ve got a question that says -- two are the same. They’re about a standard, basically, for life. “Assuming the Court does not overrule Roe, but the Court overrule -- takes out the viability standard, what replaces it?”

 

Prof. Eric Claeys:  I’ll take the -- I guess, Richard, why don’t we -- I’ll keep trying the first stab, and then, you add what you see fit. So, it’s Stephen Star’s question, “Assuming the Court does not overrule Roe, then what -- the Court does not overrule Roe but the Court overrules the viability standard.” I guess, here, I think, the -- and here, my article goes into this, and it brings together portions of the oral argument that explain this. At oral argument, Chief Justice Roberts read Roe and Casey, saying, “Both of them ground the right to choose and liberty in the Due Process Clause, and liberty can be understood as autonomy. And for a woman to have meaningful autonomy, then a woman needs to have -- keywords here -- a fair opportunity to get an abortion.”

 

      And, so, what the Chief Justice was hinting at was that Roe and Casey can be recast to entitle women, not to a right to choose up to the point of viability, but, instead, a meaningful or a fair opportunity to elect abortion. And what does mean in practice? Some amount of time, it seems long if the woman’s got a fair chance to abort before the fetus is so far developed that state interest in fetal life take over.

 

Prof. Richard Re:  Yeah, so, I think that -- I think Eric’s nomination for what could happen, I think, in lieu of the viability standard is certainly plausible. I think it is probably the leading thing what the Chief was floating, as Eric suggested. I’m not sure that that’s the only candidate on offer, by any means. So, one of the possibility, if viability were altered, you could just say the standard of viability was -- is really a time rule. It could be -- it could be translated or reduced into a number of weeks, and we pick that -- and the Court could say, “We pick that time rule because we balance competing interests or stakes,” as they expressly said. “And we’re going to rebalance those interests and come up with a new time rule today.”

 

      And, I think, they could do that without saying that the new time rule is ultimately correct because they could say, “Well, even if we take certain things for granted in this prior opinions about the fact that there are these interests and the fact that we have to weigh them, even if we assume that, we rebalanced them in a way so that, at most, they come out to 15 weeks or something like that. And we’ll reserve for later whether we have to rebalance them even further or just abandon this balancing inquiry all together.” And, so, I think that’s an example of another candidate that would come closer to being -- it would come closer to saying, “This -- these facts, this statute is okay, but others are not.” So, I think, yeah -- so I think that’s just an example of another option.

 

Prof. Eric Claeys:  So Amy Jo Conroy asks, “Do I predict that the Court will settle on a standard of life, beginning at conception?” On that, I think, my answer is, under all the likely outcomes I can imagine, no. If the Court were to flat out overrule Roe and Casey, what it is overwhelmingly -- it’s overwhelmingly likely the Court would then say, “Well, we use different levels of scrutiny to protect different constitutional rights, and, when we think that some right is not something that that’s a core right or something that’s embedded in the nation’s -- in the traditions of history that we associate with due process, we use this standard called rational bases scrutiny. And rational bases are very -- it’s a standard review, very deferential to state interests.”

 

      So, if the Court overruled Roe and Casey, I think, it likely the Court would then say, “Federal courts must now go and FOIA, review state restrictions in abortions under a rational basis regime. And rational basis, then, would say, ‘If a state wants to say that life begins at conception, we defer to that state’s judgment, if it’s a rational basis for saying so.’” But that -- the Court doesn’t have to say anything about whether life begins at conception to make that move about rational bases.

 

Prof. Richard Re:  I see Kurt Lash -- hi, Kurt. I see you have an interesting question here. I’m happy for you to take a crack at it first, Eric, but I have a reaction to it as well.

 

Prof. Eric Claeys:  Go for it. I have a reaction, too, but you should go first.

 

Prof. Richard Re:  No, please. You go first.

 

Prof. Eric Claeys:  So Kurt asks, “Do either of us believe the past and recent public criticism of Chief Justice Roberts’ less than convincing interpretation” — these are Kurt’s words — “and the growing sense he no longer leads a conservative block will affect his approach in Dobbs?” I would like -- those of you who know the old Star Trek, No Bones McCoy, would say, “Dammit, Jim. I’m a doctor, not blank.” So, dammit, Kurt, I’m a lawyer, not a psychologist. So I guess, I wouldn’t have written this article and given this webinar if I weren’t worried that there’s a possibility that -- so I guess I can give some context here. Kurt mentioned Sebelius in his question, so NFIB v. Sebelius -- some audience members will know this but not everybody will. About a decade, the Supreme Court had a challenge under the Commerce Clause to the Constitution to the mandate to buy health insurance in the Patient Protection Affordable Care Act.

 

      And four justices held that the substandard cases from the New Deal about the Commerce Clause made it constitutional for Congress to mandate that people buy health insurance, even if they did not want it. Four justices said that the mandate went far beyond any other previous case about the commerce laws and was unconstitutional. Chief Justice Rehnquist was with the four who said that the mandate went beyond the Commerce Clause but said it was a tax. And lots of commentators, myself included, thought this was a dodge, and, in Kurt’s words, “was a less than convincing interpretation.” And, so, -- I don’t know what -- the fact that he did so makes me worry that -- I find his recasting of Roe and Casey not persuasive, and the article was meant to explain to the Chief. Based on other fine opinions the Chief has written, he’ll be living up to the better parts of his legacy if he comes out and says that, if Roe is good law, then the Gestational Age Act is unconstitutional.

 

      And then, he decides, “Either I’m going to reaffirm Roe or overrule it.” I think that’s more consistent with the best of the Chief’s work. What is he going to do? I don’t know. It could be -- it’s now the case he’s no longer the pivotal vote. It could be on this case. It could be that Justices Barrett and Kavanaugh and Gorsuch provide the third, the fourth, and the fifth votes to overrule Roe.

 

      But it could be that Justice Kavanaugh -- Justice Gorsuch in the Bostock case surprised a lot of commentators in a whole -- construing the Civil Rights Act to protect people of homosexual -- protect homosexuals, and there are -- and Barrett and Kavanaugh have been on the Court so little, we don’t know what they’re going to do. And we don’t -- with the Chief Justice, if he’s more of a strategic thinker, maybe he votes with the -- if there’s five votes to overrule Roe, maybe he joins them to control the opinion. And, if they’re -- but, if they fracture, maybe he still goes with Alito and Thomas; maybe he goes with the others. I just don’t know.

 

Prof. Richard Re:  Yeah. I’ll just add -- I agree. I agree with the McCoy quote. I mean, I’m not a mind reader here. But I would be more comfortable acting like one on a podcast or whatever this is. I think that the question is interesting, in part, because it reveals a kind of tension in how the Chief acts as Chief Justice, and I say that in a noncritical way. I’m just trying to describe it. It actually may be desirable.

 

      But, in one sense, he is a -- as Kurt writes, “a leader of the conservatives and a formalist.” And then -- but in another part of him is the leader of the Court and an institutionalist gradualist and, therefore, a little bit pragmatic. And there are times when he fronts different -- one or the other at different times. And, I think, people who are in the first camp -- in other words, those are conservative and/or formalist sometimes view his forays into the other area as embarrassments or undermining him in some way. But it’s not at all obvious to me that he either does or should view it that way.

 

      He could very plausibly think, I believe, that these gradualists, institutionalists, somewhat pragmatic impulses are totally legitimate and part of his identity and part of his institutional role as Chief Justice, and, as long as he doesn’t lose tie to his formalism entirely, he can balance them in ways that maybe will be principled. And I think it’s hard to look back at his tenure so far and see any desire to decisively pick either of those two roles for himself. So I think, from what we can tell, I think he’s still comfortable with the tension being unresolved. But that’s just my armchair guess.

 

Prof. Eric Claeys:  One other thought on this -- I think it’s hard to predict what Chief Justice Roberts would do because this case pulls at a couple of attachments that he seems to have from past cases. He is a minimalist, and one minimalist way to just -- but it’s not clear what minimalism requires in this case. One minimalist strategy is to say, “Let’s get the federal courts out of heightened scrutiny of state abortion restrictions. We keep the -- a minimal role is for courts just to not be in this game at all.” But another minimal role is don’t make major changes to old cases and, in a sense, overrule a case that is as well-known and has been applied as many times as Roe v. Wade. That seems, in some sense, aggressive. So he is a minimalist, but different species of minimalism might pull in different directions, depending on what you focus on, whether it’s keep -- it’s stopping courts from striking down statutes or stopping courts, now, from making major changes to earlier doctrines.

 

      Jeffrey Wood asks, “Much of the leave of critique of Roe seems to focus on its original constitutional baselessness. And trying to narrow the holding of a baseless precedent doesn’t seem relevant or helpful. How do the panelists respond?” First, Jeff and I served together on the Environmental and Property Rights Practice Group. Hi, Jeff. Good to hear from you.

 

      Second, my article covers this, and for Part 9, the conclusion covers this most. So, from my talk, remember the point I made about bananas and recessions or using the word, “holding” in a sense that’s idiosyncratic. So, if one thinks that a court -- it develops a meaning of holding that is not consistent with an important understandings of holdings that the Court has relied on in cases like Seminole Tribe and Cohens. Assume that for a minute. Then, if you’re doing stare decisis analysis of Roe, then what you could say is, “Okay, so Roe -- Roe’s now been read a little bit differently in the Dobbs case. So, now what we have is -- so we’re doing stare decisis analysis. We’ll look at whether the early decision was egregiously wrong or not, and we’ll also look at whether there’s consistent reasoning in this field of law.”

 

      So, then, a critic of Roe could say, “It was egregiously wrong way to decide at the premise, if you just question.” And then, the Court, in a later case, to salvage some of Roe, it made Roe hold something it did not hold, and it warped or bent the law of holdings to do so. Since consistency matters a lot to decide whether to overrule, since the Court has to be inconsistent with what the abortion right is and it needs to be inconsistent in the law of holdings, that’s some evidence that Roe’s further evidence should be overruled. In a recent case, June Medical Services v. Russo, Chief -- sorry -- Justice Gorsuch wrote a long dissent, and the dissent was documenting what Josh Blackman and what others like to call the abortion distortion. In many fields of law, like free speech law and then in the June case and -- or, sorry -- in the Halstead case, the law about ratio dicta, otherwise, general principles of law seem to be applied a little bit differently when they apply to abortion rights. I clerked a long time ago for Chief Justice William Rehnquist.

 

      He did not like to take certiorari in a case when the merits of the -- if it was along some topic and abortion rights were the substantive merits under the case, but the case itself was on a different topic. And Rehnquist’s view was it was just too much of a risk that a couple of his colleagues might decide that merits issued that did not have to do with abortion or procedural issue or free speech issue differently because the merits were on abortion. And that’s a noticeable phenomenon. So you take that altogether. A later court, then, might say, “Well, Dobbs said that Roe didn’t hold what it seemed to hold. But Dobbs now was egregiously wrong because it bent the principles of precedence, and, so, I don’t have to follow Dobbs. And, as a Justice, I don’t have to follow Roe, and they both should be overruled.”

 

      I think that the moves being -- so there’s one point in Part 9. I point back to a couple of opinions where a justice has said, “There’s some case that’s so wrong, I’m not going to follow it ever going forward.” And two recent examples, after Seminole Tribe was handed down, for about a decade, the more progressive members of the Supreme Court -- said, “As soon as Seminole Tribe and cases after it can be overruled, they should be. We refuse to give them any precedential effect, even though they’ve been decided.” In a case about the Miranda Rule called Dickerson, Justice Scalia and Justice Thomas said, “We are not -- we’re going to continue to ignore Miranda going forward because there’s a state -- because it clearly did not hold the Miranda warnings.” And there was this Congress that overruled some specific parts of Miranda that were prophylactic, and Scalia and Thomas were convinced that the statute by Congress was the law, and Miranda’s wasn’t.

 

      Those are aggressive moves by courts to say, “This particular decision does not have the dignity of law.” But -- I suggest that to -- whatever rule of precedence one runs with, saying that Roe doesn’t hold what I argued it holds is a major enough departure from the rule of precedence. It wouldn’t be out of line. A court wouldn’t be going rouge or being really confrontational to say that a recast of Roe is like what the progressives thought Seminole Tribe was or what Scalia and Thomas thought Dickerson was.

 

Prof. Richard Re:  I’ll just say very briefly to Jeffrey Wood’s comment -- so I think the question should be, if the precedent is baseless, it’s not helpful to narrow it, I take, to get a challenge. And, if framed that way, which I think is a fair representation of the question, I can think of two possible pushbacks that I’m trying to channel through a lot of my comments. So one of them is that, if you think it’s baseless and you’re a judge, you should really still do a lot of process to double check your intuitions and possible biases about that. And that goes to my point as how there’s not proper deliberation or briefing or presentation on a lot of key issues, to my mind. So even if you think it’s -- if you think you're confident, you maybe should triple check your confidence by following the right procedures. In many contexts, judges acknowledge -- and all the justices acknowledge that -- you don’t want to leap to a conclusion just because it feels right in the instant.

 

      But then, the second reaction to this, even if you are really, really sure, and you know there’s no bias or lack of understanding on your part, and it’s just a wrong precedent, even then you’ve got to think about this reliance consideration. And I think that that helps explain a lot of the gradualism that we see when the Court wants to make a big pivot. And I will say that, to some extent, even the oral argument in Dobbs, to some extent the Court’s treatment of SB 8 Texas, has helped give notice and has already, perhaps, gone some way to reducing reliance cost to a big overruling. And I guess my reaction would be that the Court has not done the kind of notice in gradualism for such a big thing that it’s on the pass, even now. So, while there may be mitigations for this, there’s room for more mitigation. And, so, I think, that’s a second reason that, at least, has to be considered for narrowing even a decision that you’re 100,000 percent sure is baseless. You at least have to consider this reliance point.

 

Prof. Eric Claeys:  So I was -- I apologized to Nick. I was looking at the questions in the Question-and Answer, and Nick told people to go to the chat. So, now, I’ve gone to the chat. Stephen Schafer asks, “For someone who wants to learn more about the factors the Court has relied on for considering precedent, which case or cases should one read?” That’s -- it’s a good question. And my article, I don’t have a good answer to that.

 

      The Court -- what I tell you -- say in the article is the Court much more often it assumes an understanding of holdings and precedent and dicta, then it sets one forth elaborately. There’s a paragraph in the Seminole Tribe case that just sets forth a distinction, assumes that readers know what it is, but the Court -- and even that’s not terribly systematic. And I’m not -- after my research, I’m not aware of such a systematic treatment by the Court. So, then, I think one has -- I guess, the places that I go would be an old historical treatment, the Salmond treatise that I mentioned. But then, another -- there’s a book by Bryan Garner and several distinguished federal judges, and it’s cited in my article, [inaudible 56:03] for Garner. And that work gives you what a lot of appeals judges use to talk about precedence, and that’s probably the most helpful place I’d go to.

 

      If you don’t have any comments on that, Richard, I want to go to Justin Jankey. “What is the central holding of Roe the proponents of affirming Roe are talking about?” So the phrase, “central holding,” it comes from the Casey case. And Casey talked about the central holding of Roe having three parts. And I’ll be looking for that as I’m talking. I would say the central holdings of -- Roe has two central holdings.

 

      One is that there exists this prima facie right of a woman who’s pregnant to choose abortion. And the second is that, before viability, the state may not impose inappropriate restrictions. And it is always inappropriate for a state to flat-out ban abortions before viability. If the state is -- in this instituting, an institutional -- an incidental regulation of abortion before viability, if the law seems appropriate, like it’s protecting women’s health. It’s protecting the interests of parents in regulating a minor’s choice to get an abortion, and it seems narrow enough, that’s fine. But, if it’s not that kind of incidental regulation, then the Court holding of Roe is that an unjustified regulation of abortion or unjustified interference of abortion before the viability threshold is unconstitutional.

 

      And I’m still looking -- there’s a passage from Casey that I haven’t found yet. Okay. So here it is. This is 505 U.S. 846. “The essential holding has -- of Roe is three parts. First is recognition of the right of a woman to choose to have an abortion before viability. Second is a confirmation of the state’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies endangering the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”

 

Prof. Richard Re:  Can I jump in, Eric?

 

Prof. Eric Claeys:  Yeah, please do.

 

Prof. Richard Re:  Yeah. I see a comment from Justin is directed to me. I take it that the point, is incrementalism in the face of egregiously wrong precedent, corrupting or wrongful, if motivated or consent motivated by a desire for the justice to promote his or her reputation, I think. And I -- to me, this is a really interesting question. I think many people take the view that -- and this goes back to [inaudible 58:27] to some extent. If a justice is considering the reputation of being vain and distorting the law for their self-interest, there’s definitely a scenarious where that critique, I think, would be very sharp and very compelling. I do hesitate to accept this challenge fully, though, because, if you think about it, a lot of the things that people do, in general, are in, to some extent, considering how other people will view them.

 

      And, so, the idea of a justice’s reputation, to some extent, is like an avatar or a heroistic for whether they’re doing the right thing. And, so, what reputation means and how reputation is being used, I guess, needs to be pinned down and thought through. So, for example, if someone’s thinking about their reputation in terms of how history and the judgment of history will look at something, then you might think that that is a vain desire to be in books and have your name repeated or whatever, and I’ll lead you astray. Or you might think that that’s a heroistic for thinking about what’s really true about the law, what’s really true about the Constitution. And a way to get away from momentary biases is, “What will make me popular today? What will get me invited to nice dinners and banquets and things?” And the historical view of reputation can be a way to abstract away from those things that are actually the true corrupting influences on a justice’s judgment. So I haven’t completely rejected the challenge, but I think it’s more complicated maybe than the challenge let’s on.

 

Prof. Eric Claeys:  I want to jump in here. I agree with a lot of Richard said, and I want to just offer some thoughts about the way the law deals with this. If you look at the law, the law -- it’s very, very rare for the law to focus on somebody’s motivations. It’s much more common for the law to look at a person’s act and see whether the act interferes with someone else’s right on objective grounds and whether there’s justification to interfere with that right. So Richard and I both are Remedies Scholars, as well as other things we do. And, so, I’m just going to run with Remedies doctrine.

 

      So there’s a very, very narrow class of cases in which a court will use this idea of abuse of right and say, “This person -- one of the litigants, the only motivation we can imagine that the person to do what he’s doing is to spite or to interfere with the law -- legitimate rights of the other party. And, so, we’re going to say, ‘Even though this person had a right at law to do something, we’re not going to protect that right with a full range of remedies that we would normally protect it with because the person’s acting maliciously.’” That doctrine exists, but it’s very, very narrow. And it is so because in law it’s very important that rights be reasonably clear and justifications for actions be reasonably clear. And, to make the rights and the justifications that stable and clear, you have to extract away from what the actual subjective motivations that motive people to exercise the rights to claim justification most of the time. And, so, and, I guess, there’s a parallel to that in argument, ordinary civilian argument.

 

      It’s much better to take the -- consider the objective grounds or argument somebody relies on to defend what someone wants to do and to back away from trying to attribute to the person’s sneaky, suspicious motivations, like vanity and desire for flattery, desire for reputation. And, so, for the Chief Justice, for example, if he’s making arguments, considering doing -- reading Roe in a certain way, I think the better course of action is to take those arguments at face value and consider this is a Justice who’s trying to consider all the possible ways to decide a case. As Richard mentioned in his opening comments, the litigants took an all-or-nothing position before the Supreme Court in this case. It’s reasonable for -- it’s reasonable to be -- it’s charitable to the Supreme -- the Chief Justice to say maybe he’s looking for some way that ideological litigants weren’t -- didn’t give him and not to say, “Ah, he’s just trying to avoid getting criticized by the New York Times or by Linda Greenhouse or by the Con Law faculty at Harvard Law School.”

 

Nick Marr:  Great. Well, we are out of time, but, if the speakers have a couple more minutes, maybe we can take a couple more questions? What do you think?

 

Prof. Richard Re:  I can do a couple more.

 

Prof. Eric Claeys:  Yeah.

 

Nick Marr:  Great. Let’s see.

 

Prof. Eric Claeys:  Tom Ludend asks, “Stare decisis only applies when the majority of the Court with the ability to overturn precedent does not strongly agree -- disagree with their precedent. Do we have any reason to believe that a judge or justice who has the ability to overrule failed to overrule precedent with which the judge or justice strongly disagreed because of stare decisis?” It’s a good question, and I don’t -- I think that, at the end of the day, if justices are strongly convinced that a decision’s egregiously wrong, stare decisis will not get in the way. I get that. I think that there are lots of examples in relatively low state decisions where courts accept stare decisis.

 

      When I clerked for Chief Justice Rehnquist, there was a line of cases about the Dormant Commerce Clause and state-tax powers, and Rehnquist had voted against expanding this -- applying the Dormant Commerce Clause doctrine to state taxes in a lot -- bunch of cases. But he made me write a first draft of opinion. He finished the opinion off, just saying “Too much waters under the dam now. These tax cases are what they are, and I join it.” So everybody, I think, agrees. And, in low states’ cases, stare decisis reliance count and were the cases egregiously broad, and it’s important, I’m not bound by stare decisis. And then, different justices, in good faith, draw the line between those two paradigms differently.

 

Prof. Richard Re:  Yeah. I really like the discussion. I mean, I think a lot of what Eric said there harmonizes with my suggestion that precedent often operates as a permission. The justices can be confident that they can lawfully do something that doesn’t bind them to do it. I will say a kind of in-between option here is even the high-stakes cases. This pattern of gradualism in the Roberts’ Court, that I keep talking about, that could be viewed as a way for precedent to matter without being strictly or absolutely binding because, in a lot of these cases, you see these gradual chipping aways, and then, the hammer falls. And one possibility is that the justices weren’t sure, weren’t sure, okay, they became sure.

 

      And it became more salient, in a way, to them. But another possibility is they were always pretty sure, but precedent held them back for a while. And I think, even if that’s all the precedent does in high-salience cases — which I’m not even sure that’s the right way to view it — but, even if that’s the right way to view it, it’s a speed bump. I think, in one of my papers, I said, “It could a precedent as a speed bump.” That’s still -- that can still be quite important.

 

Prof. Eric Claeys:  I guess I have one more thought, Nick, and maybe this is a good closing thought. We’re talking about courts overruling past doctrines. And that’s a treacherous area of law because courts are supposed to apply law, not make law. And, so, if a court -- if an old doctrine’s law, then what gives a court authority to go back and change the doctrine? And the court’s got to be saying, “This doctrine is an application of some more basic law, and it’s a bad application of that doctrine.” But someone else might say, “No. You just make a new law.”

 

      And there are very important concerns about legitimacy that come up when courts are making new laws. In the Chief Justice’s memorable phrase, “Courts are supposed -- judges would be umpires.” They’re not supposed to be somebody you go to watch -- they’re not the players in the ball game, and nobody ever went to see -- went to a ball game to see an umpire. And, so, there needs -- that’s not going to stop judges from sincerely thinking, “I think some earlier decision was rosy wrong, and it’s out of alignment with the law that gives me the authority to decide these kinds of cases.” But what it does -- at a minimum, then, there needs to be some way for judges and lawyers to focus, in a constructive way, serious disagreement about what the law is, what the fundamental law is, and whether -- like in some line of cases is, is consistent with a fundamental law. And both the stare decisis doctrine and the law of precedent that Richard and I have been talking about are attempts to provide infrastructure to work out this problem.

 

      So one thing to do, in the -- is to say, “We’re not always going to agree what an earlier case held, but, at least, there’s some generally accepted criteria that we can settle on.” Courts clearly have the power to render judgments in the course of exercising their powers, and courts can render opinion to explain why they decided what they decided. And it seems a fair and objective criterion that sets up reason and argument to ask, “Does a certain passage from a case seem crucial to the judgment handed down in this case? Is another case relying on it?” And that’s what the law of precedence does. So courts can, then, argue what an old precedent held, but, at least, they can bracket the argument of what it held, relying on the ratio dictum distinction.

 

      And, in the rule of stare decisis, the principles of stare decisis, they’re a balancing test. They’re certainly not exhaustive, but they give lawyers and judges a commonly shared-objective set of criterion they can use to bracket and focus the disagreement, whether some old doctrine seems to be bad law, asking things like, does it seem egregiously wrong applying the Constitution or the common law or whatever else is supposed to be applying? And does it do it -- has it built up reliance interests and any other relevant factors? So do these eliminate disagreements? No. But do they help us focus disagreements? Yes. And they can help us express or articulate into a judgment we have that something seems really wrong.

 

      And psychologically, it’s a good thing, if people just aren’t angry because they feel like a fast one was pulled over by an official. It’s better if there’s a vocabulary in the law to express the criticism. And I think that civil discourse becomes to be more civil, less controversial, if people are arguing in frameworks like this. And, so, part of what I’m trying to do in this argument is to say, I think there are people out there that think that it really would be a fast one to say Roe didn’t held what judges have been thinking it held for 50 years. And I’m trying to give people the legal vocabulary to ask whether that does seem like an aggressive move or not. But, again, thank you for great commentary with Rick -- from Richard, and thank you to Nick for -- and to The Federalist Society for putting this on.

 

Prof. Richard Re:  Many thanks to you, Eric, and to all the comments and thoughts. It’s been a lot of fun. Again, I really got a lot out of it myself.

 

Nick Marr:  Yeah. Thank you, all. On behalf of The Federalist Society, I want to extend our thanks to our speakers. Thanks for taking time out of your schedule -- your busy schedules and discussing this important issue with us, today. Thanks also to our audience for calling in your great questions. It was really a great engagement. Sorry that we didn’t get to all the questions, but we tried in earnest. And please keep an eye on your email and our website for announcements about upcoming events, like this one. Maybe we’ll have to do another. But, until that next event, we are adjoined.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.