On June 24, 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization. In a 6-3 decision, the Court reversed and remanded the decision of the US Court of Appeals for the Fifth Circuit, holding that the Constitution does not confer a right to abortion; that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; and that the authority to regulate abortion is returned to the people and their elected representatives.
Justice Alito delivered the opinion of the Court. Justices Thomas and Kavanaugh filed concurring opinions. Chief Justice Roberts filed an opinion concurring in the judgment. Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.
- Allyson Ho, Partner and Co-Chair, Constitutional and Appellate Law Practice Group, Gibson, Dunn & Crutcher LLP
- Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to The Federalist Society's Courthouse Steps Teleforum webinar, as today, June 24, 2022, we discuss Dobbs v. Jackson Women's Health, decided earlier today by the U.S. Supreme Court. I'm Dean Reuter, General Counsel and Senior Vice President at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call. Also, be advised that this call is being recorded, and will likely be used as a podcast in the future and transcribed for our website.
We're very pleased to welcome today, one expert. All we need is one expert on this case. Our guest speaker is Allyson Ho. She's a Partner and the Co-Chair of the Constitutional and Appellate Law Practice Group at Gibson, Dunn & Crutcher. She's going to give us opening remarks, probably in the range of 10 to 20 minutes. But we're doing this sort of on-the-fly, so we're not exactly sure how long her opening remarks are going to go, 10 to 20 minutes or so.
But, after that, I might have a few questions, and then, as always, we'll be looking to the audience for questions. We're going to be using the Q&A function at the bottom of your screen to submit written questions, so feel free to submit those at any point in time. And we'll get to those as the program progresses. With that, again, welcome, Allyson Ho. I've got to do this -- this is the opinion, this is the decision, what does it mean, Allyson? Please take us away.
Allyson Ho: Thank you so much, Dean. And, if you'll allow me a moment of personal privilege, I've been an active member of The Federalist Society since I was a 1L in law school at Chicago. And, to me, The Federalist Society is a place where people of good faith can come together who hold widely divergent views on a broad swath of issues, where we come together and debate and discuss those issues in good faith. So, it's a real privilege for me to be included in today's discussion of the Supreme Court's opinions in Dobbs v. Jackson Women's Health Organization.
So, today, the Supreme Court overruled Roe v. Wade, and Planned Parenthood of Southeastern Pennsylvania v. Casey, holding that the Constitution doesn't confer a right to abortion, and returning the authority to regulate abortion to the people and to state legislatures. And just a bit of background first, before we jump into the majority opinion.
The Mississippi law at issue in Dobbs prohibits any abortion after the 15th week of pregnancy, except in cases of medical emergency or of severe fetal abnormality. An abortion clinic and one of its providers challenged the law, arguing that it violated Roe and Casey by prohibiting abortions before the viability of unborn babies. Mississippi, the challengers, and the federal government, all agreed in Dobbs that this case required the Supreme Court either to overrule or to reaffirm Roe and Casey.
Justice Alito's 79-page majority opinion — which was joined in full by Justices Thomas, Gorsuch, Kavanaugh, and Barrett — holds that the Constitution doesn't confer a right to abortion, and that Roe and Casey must be overruled under principles of stare decisis. The majority starts with what it calls "the critical question," a question that Casey didn't consider: whether the Constitution confers a right to obtain an abortion. The majority explains that because the Constitution doesn't expressly mention or protect a right to obtain an abortion, that right is protected only if it is implicit within the constitutional text.
And, notably, the majority points out, Roe didn't specify where in the Constitution that the Constitution implicitly guarantees the abortion right. But Casey concluded that the abortion right is part of the liberty protected by the Fourteenth Amendment's due process clause. The majority goes on to explain that whether a particular right fits that bill is governed by a long-standing framework, both for rights specifically spelled out in the Constitution, like the first eight amendments, and for putative rights that are not mentioned in the Constitution.
The Court has long required historical evidence that, and I quote, "The right is deeply rooted in our history and tradition," and that it is "essential" for a nation's scheme of ordered liberty. "That approach," the majority continues, "guards against allowing the Supreme Court," in the majority's words, "to usurp authority that the Constitution entrusts to the people's elected representatives," by transforming the due process clause into what the majority termed, "the policy preference of members of this board."
Applying that approach, the majority reviewed voluminous historical evidence that abortion was illegal at common law, at least after the 16th week of pregnancy. Then the majority turned to American law, noting that when the Fourteenth Amendment was adopted, three-quarters of the states had made abortion a crime at any stage of pregnancy, and that by the late 1950's, at least 46 states prohibited abortion, however and whenever performed, except if necessary to save the life of the mother.
Based on that voluminous evidence, the majority determined that a right to abortion is not deeply rooted in the nation's history and traditions. The majority then rejected the dissent's theory that constitutional cases establishing a broad right to autonomy, including cases like Eisenstadt, Lawrence, and Obergefell, about contraception, and about same-sex relationships, somehow ground a right to abortion.
The majority explained that those cases have nothing to do with the question whether the Constitution guarantees a right to abortion. That's because, according to the majority, the right to abortion involves something none of those other cases did: the destruction of an unborn human being. The majority emphasized, though, that just as those other substantive due process cases don't bear on the right to abortion, so too its decision today in Dobbs shouldn't be understood to cast doubt on precedents that don't concern abortion.
Next, the majority considered the doctrine of stare decisis to decide whether to overrule Roe and Casey. The majority emphasized that some of the Court's most important constitutional decisions, including Brown v. Board of Education, West Coast Hotel v. Parrish, and the West Virginia Board of Education v. Barnette, themselves overrule prior decisions. So stare decisis is not an unbending command, the majority emphasized.
The majority applied five stare decisis factors and determined that each weighed strongly in favor of overruling Roe and Casey. First, the nature of the error. As the majority put it, Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated the errors. Both decisions short-circuited the democratic process and took authority from the people to determine proper restrictions on abortion.
Second, the majority homed in on the poor quality of Roe and Casey's reasoning. Roe failed to ground its decision in the text of the Constitution, or in history, or in precedent, the majority says. And Roe imposed the viability standard, which, the majority explains, is, according to the majority, riddled with multiple problems. Casey refused to correct Roe's errors, and, instead, replaced Roe with what the majority terms an arbitrary and unworkable undue burden test.
Third, and relatedly, the majority considered the workability of the rules Roe and Casey imposed, and it summed up that Casey's undue burden test has scored poorly on the workability scale. In particular, the majority noted that many ambiguities within Casey's test, and the slew of abortion cases the courts of appeals have faced in the decades since, underscore the unworkability of Roe and Casey's rules.
Fourth, the majority explained that Roe and Casey have disrupted other areas of the law, noting that legal doctrine, such as standing and res adjudicata, have morphed to accommodate the abortion right.
Fifth, the Court noted the lack of any concrete reliance interests. Casey, itself, recognized that the availability of abortion doesn't implicate traditional reliance interests, like those in property or contracts cases. And the majority held that intangible forms of reliance interests, like the effect of abortion on society and in the lives of women, are concerns not for courts to adjudicate, but for legislatures to consider.
The majority thus determined that well-established principles of stare decisis required overruling Roe and Casey. The majority then went on to apply the now-governing standard of review, the rational basis test, to the Mississippi law at issue. The majority first explained that courts must give abortion regulations, as with all health and welfare laws, a strong presumption of validity, and uphold the law if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.
"Those legitimate interests include," the majority went on to list, "respect for, and preservation of pre-natal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability. As for Mississippi's law, the majority held that this 15-week ban plainly furthered these legitimate interests, is supported by a rational basis, and is, therefore, constitutional.
So I'll end my description of the majority opinion where the majority opinion ended. Dobbs holds that the Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. But overruling Roe and Casey, the Court returns that authority to the people and to their elected representatives.
Now I'll move on and discuss the separate opinions, and, also, the dissent. Justice Thomas, who joined the majority in full, wrote separately to emphasize his long-held view that the due process clause guarantees only procedural rights, not substantive ones. Contending that any substantive due process decision is demonstrably erroneous, Justice Thomas called on the Court, at a later date, to reconsider all the Court's substantive due process precedents, noting that no party in Dobbs had asked the Court to do so in that case, and so there was no occasion to do so. And Justice Thomas flagged three reasons that he considers substantive due process -- not just erroneous, but also dangerous.
First, in Justice Thomas's view, it exalts judicial policymaking, something he argues is especially clear in the Court's abortion jurisprudence. Second, it distorts other areas of constitutional law by recruiting the equal protection clause to provide special protection provided to the Court the Court considers especially fundamental. And, third, Justice Thomas expressed his view that it's often been “wielded to disastrous ends” . He flags that the Court invoked substantive due process in Dred Scott to justify the continued enslavement of African Americans, and that more than 63 million unborn children have been aborted after Roe and Casey.
Given these dangers, Justice Thomas calls on the Court to eliminate substantive due process, and then consider whether other constitutional provisions, like the Fourteenth Amendment's privileges or immunities clause, guarantee some of the rights that the Court has grounded in substantive due process.
Justice Kavanaugh also separately concurred, explaining that he finds the issue of abortion to be, as he puts it, a profoundly difficult and contentious issue, because it presents an irreconcilable conflict between the interests of a pregnant woman who seeks an abortion, and the interest in protecting fetal life. Justice Kavanaugh emphasized that Americans of good faith take both sides of the debate, and many take neither side in full measure, but, instead, have more nuanced views that might vary, depending on the circumstance.
Justice Kavanaugh emphasized, however, that the issue before the Court wasn't the policy or morality of abortion. It was the role of the Constitution, in terms of the abortion right that Roe and Casey had recognized. And the Constitution, according to Justice Kavanaugh, doesn't take any side. "It is neither pro-life, nor pro-choice," to quote Justice Kavanaugh. It is neutral.
For that reason, Justice Kavanaugh explains, the Court, like the Constitution, must remain scrupulously neutral on the issue. The Constitution leaves the question of abortion to the people to resolve through the democratic process. And for that reason, Justice Kavanaugh also rejected the view that the Constitution outlaws abortion altogether. Justice Kavanaugh next remarked that, while he agrees that adhering to precedent is, and should be, the norm, every member of the current Court has voted to overrule precedent. Indeed, he points out, every member of the Court since 1921 has done so too.
According to Justice Kavanaugh, this history demonstrates that overruling constitutional precedent is permissible where that precedent is egregiously wrong, has caused significant jurisprudential or real-world problems, and hasn't engendered reliance interests that would be unduly upset. Because those factors were satisfied here, in Justice Kavanaugh's view, he concurred. Justice Kavanaugh further emphasized, along with the majority opinion, that overruling Roe does not mean the overruling of other precedents, and doesn't threaten or cast doubt on those precedents.
He also expressed his views that a state could not ban a woman from traveling to a different state to obtain an abortion without violating the constitutional right to interstate travel, and could not retroactively impose liability for abortions that predate today's decision without violating the due process clause or the ex post facto clause.
The Chief Justice concurred in the judgment only. His concurrence homed in on the question presented, saying that the Court granted cert only to decide whether all pre-viability prohibitions on elective abortions are unconstitutional. In fact, he pointed out, when Mississippi petitioned for review, they expressly disclaimed any need for the Court to overturn Roe, in order to uphold the law under challenge. And, in its merits briefing, the Chief Justice pointed out, Mississippi continued to stress that the Court could rule for it, without overruling Roe.
With that in mind, the Chief Justice took what he describes as a more measured approach that adheres to the fundamental principles of judicial restraint: not deciding anything more than is necessary to dispose of a case. The Chief Justice has frequently articulated this principle as being that it is not necessary to decide more. It is necessary not to decide more. The Chief Justice goes on to agree with the majority that the viability line of Roe and Casey must be discarded, because, as the Chief Justice puts it, that line, "never made any sense."
Under the Chief Justice's view, the Court's abortion precedents require only that a woman have a reasonable opportunity to choose whether to continue a pregnancy, and viability isn't necessary to safeguard that right. Mississippi allows three months for a woman to choose whether to terminate, and, in the Chief's view, that time period is sufficient to safeguard a woman's right to choose. In reaching his decision, the Chief Justice pointed out that Roe's viability analysis "came out of thin air" in the first place.
States didn't tie the abortion right to viability, and no party or amici proposed that test either. Instead, the Roe Court assumed that a state's interest in protecting an unborn child only became compelling once the child could live outside the womb, because that is when a child could live outside the womb, and the Chief Justice called that reasoning circular.
The Chief Justice also pointed out that later opinions eroded Roe's viability line, because the Court began to recognize the interest in not causing pain to non-viable unborn children, and rests in upholding the integrity of the medical profession. And viability doesn't further these goals either, in the Chief Justice's view. So, the Chief Justice reasoned, stare decisis doesn't counsel sticking to the viability line. And it is there that the Chief Justice ends his analysis, without further discussion or analysis of whether women have a constitutional right to the opportunity for an abortion in the first place.
Turning now to the dissent, we have Justices Breyer, Sotomayor, and Kagan, somewhat unusually, co-authoring their 60-page dissent. The dissent primarily discusses the important policy implications and practical impact of the majority's decision to overturn Roe and Casey, something the dissent faults the majority for not seriously considering in its opinion. The dissenting justices explain that Roe and its progeny recognized the divisiveness of the abortion issue and struck a balance between a woman's right to choose and the state's legitimate interest to protect the life of an unborn child.
The dissent criticized the majority for claiming that these decisions didn't adequately weigh the state's interest in protecting the life of an unborn child, asserting that "nothing could get these decisions more wrong." Instead, the dissent accused the majority of dispensing with that balance altogether, and stripping women of all rights, from the moment of conception, by lowering the standard of review to rational basis.
The dissent rebuked the majority for this lowered standard, predicting that it will lead to women being forced to give birth to children who are the product of rape or incest or have severe physical anomalies, and to giving birth despite the risk of death or physical harm to themselves.
The dissent also expressed particular concern for the enforcement of anti-abortion laws. While, traditionally, states criminalize the act of providing abortions, the dissent expressed concern that states will also fine or imprison women for obtaining abortions, and it worries that states will eventually try to block women from traveling to other states that have legalized abortion, which is a concern that Justice Kavanaugh, as a concurrence, addressed.
But what the dissent found most threatening was that the majority's opinion contained no language preventing the federal government from banning abortion nationwide. So, Dean, I would welcome questions from you, or any members of our audience.
Dean Reuter: First, let me acknowledge your kind words for The Federalist Society, at the outset, but also congratulate you. That was a sweeping and comprehensive coverage of a very, very long set of opinions that came out just hours ago. So, thank you, and, obviously, to your team, for putting that all together. I've got plenty of questions of my own. The audience is already lining up with questions. We're using the Q&A function at the bottom of the screen, if you'd like to submit a question.
But I'm wondering if you could, now, talk about just some of what's next, and what are some of the practical implications of this decision. While we were awaiting the decision, there was a lot of discussion about this is outlawing abortion, abortion will be outlawed throughout the country. We started to hear a bit of a change in the narrative that, no, this means that the decision-making is going back to the states, and that's where it will rest. But could you address some of those questions?
Allyson Ho: Sure. And Dean, I think you have it precisely right. And I think Justice Kavanaugh's opinion put it well, that the import of today's decision is that the Constitution is neither pro-abortion, nor pro-choice. It is, as Justice Kavanaugh said, it is strictly neutral. What the majority opinion did today, importantly, is it set out the standard of review rational basis that will apply to any further challenges or future challenges to state laws. But, under the majority opinion today, states remain free to regulate abortion, subject to the rational basis test that the majority lays out today.
Dean Reuter: Terrific. And the second question, it's going to incorporate one of the written questions from our audience members, but that's: what is the role of the court, the U.S. Supreme Court, or other federal courts, going forward? As the states begin to implement this, it seems that the majority opinion, again and again, says this is not within the jurisdiction of the federal courts. Is there a role for federal courts, as state laws come into effect, and some of these so-called trigger laws come into effect? Or, as they pass more rules and regulations, what's the role for the federal courts, if any, going forward?
Allyson Ho: Well, I think the role of the federal courts, going forward, will be consistent with the role of the federal courts today, in terms of resolving any future challenges to state regulation of abortion, again, applying the rational basis standard that the majority does, and adjudicating some of the questions that the dissent highlighted and that Justice Kavanaugh confronted and expressed his individual views, concerning questions to come.
Dean Reuter: Great. And what about -- you mentioned the other privacy rights, I guess we'd call them, collectively, and the effect of this decision, the majority opinion on those privacy rights. It seems that, from the draft that was leaked, to the final opinion that came out this morning, there was some language added that emphasized that this opinion does not pretend to and specifically disclaims, applying to those other privacy rights. Can you speak to that? Is that correct? Do I have that right?
Allyson Ho: No, I think you have that exactly right. Justice Alito's majority opinion takes pains and repeatedly emphasizes not just that those -- nothing in today's decision on Dobbs threatens or casts any doubt on those decisions. But he also quite expressly went on to explain why: because none of those cases involve the destruction of unborn life. Though I think Justice Alito's majority opinion went out of its way to say, not just that today's decision didn't involve the rights at issue in those cases, but that the decision doesn't cast doubt on those cases, and explained why.
Justice Kavanaugh picked up on that theme as well, and reiterated it in his concurring opinion and in Justice Thomas's separate concurrence, indicating his well-established view on substantive due process and expressing his willingness to consider whether those decisions are right. No other Justice joined Justice Thomas's concurrence, but even that concurrence goes on to say that the job of the Court would be not only to consider sort of that substantive due process question, but also to consider whether any of these rights could be grounded in other provisions of the Constitution. So, after today's decision, I think several members of the Court went out of their way to say that nothing in today's decision threatens or casts doubt on those cases.
Dean Reuter: I think you mentioned that Clarence Thomas even went on to mention, gave an example, make the privileges and immunities clause of the Fourteenth Amendment as one place that this right could possibly run or it could possibly [inaudible 0:26:29] privacy.
Allyson Ho: Yes, absolutely.
Dean Reuter: Good. You mentioned -- well, some of the commentary that I've heard late this morning after this came out talks a lot about the Court overruling a precedent that has been in place for nearly 50 years. And you explain that the majority opinion goes on to discuss that and talk about stare decisis in a five-step analysis. That five-step analysis, is that a new framework? Or is that -- it feels to me like these are commonly discussed in Supreme Court jurisprudence. I don't know if they've ever been collected in one place and used in that stepwise fashion. That's my first part of a compound question. The second part is, does the dissent address that at all?
Allyson Ho: So, let me begin with the first part of your question. I share your view that the factors that the Court discusses I think are the same ones that courts have always discussed when considering whether stare decisis should favor overruling or reaffirming a particular precedent. It may be that Justice Alito's majority opinion sort of organizes those considerations a little differently.
My read, which, admittedly, is not a thorough read, and, of course, all of these opinions and the issues they raise will -- today is only the beginning of the discussions about them, I know, but my sense of the dissent's dissatisfaction with the Court's application of stare decisis was really more on a substantive level, in terms of the conclusions that the Court reached, and less on, I guess, what I'll call the procedural level, in terms of the framework for evaluating the stare decisis question going further.
Dean Reuter: Yeah, interesting. You might not have read this carefully enough to know, but did the dissent talk about reliance interests? I've heard a lot of weight put behind that, on one side of the argument, that we have this entire 50 years of culture built up around Roe v. Wade and a woman's right to choose.
Allyson Ho: No, that's right, Dean. And I think where the majority and the dissent sort of engaged on this point is sort of how to characterize reliance interests, where the majority pointed to concrete, the majority stressed the importance of concrete reliance interests, as one sees in property contract cases where I think the dissent's view is that is too crabbed a view of reliance interests, which, in the dissent's view, are more capacious.
So I do think that, completely outside of the abortion context, I do think that might be one area where we might see the court continuing to join issue in other cases that present the stare decisis analysis, how you characterize it, and what concrete means, and what is too capacious to be sort of included in the header of reliance cases going forward.
Dean Reuter: Yeah, I'm wondering also, sticking with the dissent, did anyone respond -- did the dissent respond, since it was co-authored? You mentioned that is unusual. Is that to demonstrate unity among the three, or how unusual is that, and what's the purpose of that, if you can ascertain the purpose of that?
Allyson Ho: Sure. The dissent doesn't say, and I wouldn't presume to speak for them, but, I think, me personally, how I would understand that is the desire to present a unified front and have the dissent, in this case, not be associated with any particular justice, but, rather, reflect the unity of the dissent, and sort of come together with one voice, rather than either a series of dissents, or, as is more typical, a dissent whether you have one authoring justice who is then joined by others.
Dean Reuter: Yeah, reminds me of per curiam opinions, but on the dissenting side. You mentioned that --
Allyson Ho: Yes, and it's also, in some ways, an echo of Casey, itself, where you had Justices O'Connor, Kennedy, and Souter writing.
Dean Reuter: You mentioned that Justice Kavanaugh, in his concurring opinion, noted that every current justice — indeed, I guess, you said every justice since 1921 has overruled a precedent — if I remember correctly, I think he was making some of those points in oral argument, or beginning to make some of those points in oral argument. I'm curious, sticking with the dissent, did the dissent address that at all, or concede that, or acknowledge that? Or just not address that at all?
Allyson Ho: The point that the dissent made, and, I think, one of the -- if you recall from oral argument, one of the questions was whether just being egregiously wrong would be sufficient to overrule a prior decision of the Court. And hopefully one of our audience members will correct me if I'm wrong on this, I believe that the dissent today says, embraces that as a theoretical view that it would be possible to have a case that is so egregiously wrong that that would be sufficient ground without more, but that that would be extraordinarily rare and that it would virtually -- it would almost never be the case.
But as I read the dissent, it did not close the door entirely on that. So I think the disagreement between the majority and dissent in this case, really, I think the heart of it is a disagreement about how to apply the test and the principles in any particular case, whether stare decisis should apply or not, and kind of each side accusing the other of misapplying that test, rather than any kind of more broadside disagreement about the doctrine itself, as opposed to how it applied in this case, and how it will apply in cases down the road.
Dean Reuter: Yeah, good. I wonder if you could say more about the 5-4/6-3 decision — and I guess that means the position of the Chief in this case — and what are the practical implications of that?
Allyson Ho: So, I think the practical implications, primarily, are that there were five votes to overrule Roe and Casey, and so that is the holding of the Court's majority today. So, I think, to that extent, I think the Chief's separate concurrence, I think it is a textbook example of the principle that I think may well characterize his approach to the law and his tenure as Chief Justice, certainly, which is when it is not necessary to decide more, it is necessary not to decide more. And I think that principle really animated the Chief's concurrence in the judgment only.
Dean Reuter: Interesting. There's a question in the queue now, and, by the way, if you're in the audience, if you have a question, use the Q&A function at the bottom of your screen. We'll get to as many of these questions as we can. And this gives me a chance to plug a Federalist Society initiative on state constitutions where we are taking a closer look at state constitutions and the condition of the ratification documents around state constitutions.
But the question is whether or not this decision opens up an avenue for states to recognize protections for the unborn, under their state constitutions. I guess a corollary question could be: does this open up an avenue for states to recognize a woman's right to choose, under their own state constitutions?
Allyson Ho: Yes, absolutely. And today's decision -- I think most of the commentary on Roe and Casey have focused on its restrictions, and, rightfully, on states' ability to regulate abortion, but it also put limits on that ability, sort of in the other direction. And those limits are now gone today, as well. So that issue of regulating abortion returns fully to the states today for the people to legislate as they see fit, on either end of that spectrum, if that answers the question, Dean. Dean, I think you're on mute.
Dean Reuter: I was determined, Allyson, to get through this whole call without doing that, but -- I do have some background noise where I am, so I'll continue to mute myself, but try to come off mute appropriately. But the question here that -- I'm not sure if you've had a chance to delve into this significantly to answer this question, but it's whether or not the leaked draft differed significantly from the final product. I don't know if you've done a side-by-side, but any notable differences that have jumped out at you?
Allyson Ho: So, I do not have an answer to that question, Dean. I actually -- I did not read the leaked draft. As a former law clerk who well remembers having then-Chief Justice Rehnquist talk to all of us about the importance of confidentiality and the Court's work, and a vow, an oath that I took that is not time-limited and didn't end with my time at the Court, I didn't. And I say this without -- no judgment for others who would take a different view. But, just for me, it didn't seem right to review the draft, so I didn't. I've been busy processing the opinions, and putting this discussion together, so I'm oblivious to the commentary today.
Dean Reuter: Fair enough.
Allyson Ho: But I am sure that will be a big focus, in and of itself, going forward.
Dean Reuter: Fair enough, fair enough. And I'm sure a lot of people will respond to that, and there will be a lot of work around that question. So, here's a question from the queue, and that is, "I read the majority opinion as a surprising, if limited, reaffirmation of substantive due process. Did I read that correctly?" And, that, maybe, goes to the interaction between the majority opinion and Clarence Thomas's concurring opinion.
Allyson Ho: Yes, I think that's right. I would want to think a little bit more about that, in terms of how to characterize the majority's take on substantive due process, more generally. Certainly, it is accurate to say that the majority did nothing to question substantive due process more generally, took great pains to very precisely identify the right at issue in Dobbs, and why that right is categorically different than the rights at issue in any of those other cases.
And, again, you had Justice Thomas writing separately and no other Justice joining that. So, whether that constitutes kind of a surprising re-affirmation of substantive due process by the majority, or simply a desire or reflection not to engage in that, and certainly not as fully as Justice Thomas's dissent does, I think that is another interesting question that will continue to be discussed and debated as we really dig in and go through all of these opinions in more detail in the days and years to come.
Dean Reuter: Good. And, again, I appreciate you coming and speaking to us and taking questions, literally hours after this complex piece of work came out. You might have already said as much as you want to say, but here's another question from the queue, and that's if you could talk a little bit more about the difference between substantive and procedural due process analysis. You know, when I was in law school, I was an unsophisticated kid, and I heard procedural due process. Procedure, process -- those things, to me, held together. Substantive process -- that sort of stuck in my mind. But go ahead and say what you'd like to say on that.
Allyson Ho: Sure, well -- to quote Justice Thomas's concurrence, substantive due process, in Justice Thomas's words, is an oxymoron. I think, in terms of the analysis, due process analysis also looks at history and traditional notions of justice and fair play, whereas the substantive due process analysis sort of has multiple levels of how to characterize the right at issue, how to determine whether the right at issue — as Justice Alito's majority opinion goes on — is sort of embedded in the nation's history, and is essential to the nation's concept of ordered liberty.
I think Justice Thomas would say that even kind of describing that analysis sort of underscores the complexity of it. And, I think, in Justice Thomas's view, the room for judicial overreach and policymaking, inadvertent as it may be, that can creep into the substantive due process analysis, in Justice Thomas's view, in ways that sort of standard — as you put it, kind of what you learned in law school about traditional due process principles — doesn't involve to that extent.
Dean Reuter: I will unfairly ask you a question that includes yesterday's Second Amendment question, but some of the initial commentary I've heard about the Dobbs case points out what they would describe as tension between today's decision and yesterday's, that is, that today's pushes an issue back to the states, explicitly. And yesterday's was an imposition of a Supreme Court opinion on a state law. Do you have any response to that?
Allyson Ho: So, I guess my kind of off-the-cuff response to that is I would look -- I guess, if anything, I've seen more similarity, and, actually, kind of a line that's now, I think, kind of uniting several different areas and doctrines, and that is just the increasing importance of historical analysis across a broad range of issues, if you think of the establishment clause, and how the Court's cases have started to focus more and more on history.
I think the Second Amendment context the same, and I think today -- and you may recall that one of the majority's main criticisms of Roe was what the majority termed its kind of shoddy historical analysis, and its criticism of Casey was that Casey really didn't sort of undertake that at all, it just proceeded from a stare decisis point of view. So, I think I would say that today's decision in Dobbs, yesterday's Second Amendment decision, really continue what we're increasingly seeing at the Court, which is more attention to history, than, I think, perhaps, we have seen before, in a wide variety of issues and doctrines, across the board.
Dean Reuter: Great. We have, believe it or not, 65 questions in the queue, so we will probably use the remaining 14 minutes. And I'm trying to distill some of these and batch them. A number of folks are interested in the prospect of federal legislation. What does this decision mean for the prospect of federal legislation, in one direction or another -- legislation, or even federal legislation preserving a woman's right to choose, or preserving a right to life for the unborn?
Allyson Ho: Well, that was one of the points that the dissent emphasized, was that it pointed out that the majority really had nothing to say about that, which was a particular concern to dissents. But I think that is really another, in terms of your earlier question about what's next, what are we going to see next — I think I focused on state regulation, but I think, as many commentators and legislators were already talking about, even before today's decision — is the possibility of legislation on the federal level.
Dean Reuter: Good. Does the Roberts concurrence endorse or reject that majority's rational basis standard?
Allyson Ho: Oh, interesting question. I would say -- I think the Chief Justice would say that, because he didn't need to reach that question, that his concurrence really does not weigh in on that at all. His concurrence sort of announced kind of another approach, in terms of the reasonableness standard that he would apply. So, I guess it's an interesting question, whether those would amount to basically the same thing in practice or not. It's a very interesting question.
Dean Reuter: So, here's -- I'm trying to distill two questions here in one, and that is that Alito's statement about substantive due process cases, given that they were separate from the holdings, and given the Thomas concurrence, can those statements be treated as dicta, going forward, and, basically, I suppose, ignored? And, combined with that, what will the Court, in the future — this is speculative — accept Justice Thomas's invitation to reconsider substantive due process?
Allyson Ho: A lot packed into those questions. As you know, Dean, the question of what's dicta, what's not, is, itself, its own topic. I think courts, going forward, will accept the majority at its word. And I think the fact that the majority went on to distinguish those cases -- now, you may not be persuaded by that distinction or that explanation, but the fact remains that the majority didn't just say, well, those cases aren't before us, and it didn't just say those cases could be distinguished in different ways. It was very precise about the difference and why its decision today did not -- now the dissent's not buying that.
But, I think, in some ways, the fact that the dissent itself underscores that that is certainly what the Court said, and what the court thinks it said. So, I think that's one of those areas that'll unfold, going forward. In terms of the Court reconsidering any of that, to state the obvious, the Court takes the cases, or doesn't take the cases that come to it. And so I think we'll just have to wait and see what gets challenged, what makes it to the Court. But with only Justice Thomas's concurrence, and no other justice joining it about being willing to entertain challenges to the current substantive due process jurisprudence, probably the smart money will be on that it will be quite a while before there are four votes to grant cert in a case to undertake that analysis.
Dean Reuter: Now we're returning again to the New York gun case, and, again, somebody's asking about the differences between these two cases, and the fact that some legal commentators are, again, pointing out the tension. Is it enough to say, in the distinction between those cases, that one is explicitly a bill of rights, and the other is not mentioned at all? Does that resolve the issue? Is that enough of a response?
Allyson Ho: I think that is certainly one response. Justice Alito's majority opinion did take pains to say that even for rights not specifically in the Constitution, that the analysis goes on to determine whether, nonetheless, those rights are implicit in the Constitution. So there are still, under the majority's view, there is still that subsequent analysis that has to be undertaken.
So I think that is certainly one point of distinction, and I think it's an important point of distinction. I think that weighs heavily in the historical analysis, but I think Justice Alito's majority opinion made clear that, even for rights that are not enumerated specifically in the Constitution, but are, arguably, implicit in it, then you go on and do the historical analysis and the other prongs of that analysis for those assertive rights as well.
Dean Reuter: Considering the difference between dicta and binding holdings, I think you mentioned, in the Justice Kavanaugh concurrence that states can't ban women from traveling to procure abortions, it feels to me that some people -- well, do you agree with that? And is that dicta? Did the majority pick up on that at all?
Allyson Ho: No, the majority did not pick up on that, and, as you know, it's not uncommon in Supreme Court decisions to have concurrences that sort of take on or address concerns of the dissent that the majority simply doesn't address or doesn't weigh in on. And Justice Kavanaugh was quite clear in his concurrence to ascribe -- to say, these are -- this is my view -- this is my view, this is what I would hold, and, so, going on record in a way that is, admittedly, not a holding that these are the views of Justice Kavanaugh.
But, nonetheless, I think any time a Supreme Court Justice takes pains to express his or her views, that's something that lower courts can take into account, but not as binding precedent, if and when they face some of these issues.
Dean Reuter: There's a strategic question here in the queue, and that is, now that we see the lineup, Justice Thomas assigned this opinion to Justice Alito. Why not write the lead opinion himself, instead of concurring? That requires some, I don't know, some special insight or speculation on your part, but I don't know if you want to respond to that.
Allyson Ho: Yeah, it reminds me, kind of in a different context of — you may recall in the race preferences cases, Grutter and Gratz — how Justice Stephens was in the majority in those cases and assigned to Justice O'Connor to write the majority opinion in those cases, which is, I think, an act that I think underscores judicial modesty and humility, and may spring from some of the discussion that we've been having about Justice Thomas's views on substantive due process that he expressed in his concurrence.
I wouldn't want to speculate on whether and to what extent that played a role. But you're right to underscore that. It is a moment. and, to sort of echo the point you raised earlier, that it was Justice Thomas who delivered the majority opinion of the Court in yesterday's Second Amendment decision, which, I think, is one of his most momentous majority opinions in his tenure on the Court.
Dean Reuter: So, both opinions — again, the gun case and this case — seem to emphasize text and history. But there's a question in the queue about what does that mean, if you can discern it, in particular, for tiers of scrutiny analysis, the future of tiers of scrutiny analysis. And a related question: what does that emphasis say about the legacy of Justice Scalia? Can you hear echoes of Justice Scalia here? Can you hear his voice in this sort of analysis at all?
Allyson Ho: Yes, well, you hear his voice throughout these opinions, because he's quoted pretty extensively, throughout. And I think it's a very interesting question about the Court's growing allegiance to text and history, and how that interacts with the tiers of scrutiny. And you talk about stare decisis and reliance interests. You do sort of see the stage set for kind of two really deep-seated and profound -- text and history on one side, and yet, these tiers of scrutiny that have really been a part of the Court's jurisprudence for decades. So, I think, again, that will be another thing that will be interesting to see unfold, going forward.
Dean Reuter: Great, we've got about 60 seconds left, and I want to give you a chance to say anything you have else on your mind, or to wrap up, or express a final thought.
Allyson Ho: Oh, well, I'll just express, again, my gratitude for the opportunity to join today's discussion. And I'm sorry that we couldn't get to all, what, of 60, 65 questions, but that, no doubt, in the days, weeks and years to come, we'll be able to dig deeper into the opinions, and the important issues that they present.
Dean Reuter: That is for certain. And, by the way, we got up to 69 questions. So I'm thinking that's a Federalist Society record. And, to your point about future analysis, we are in the process of putting together a panel discussion, a webinar panel that we'll host in the very near future. So, to the audience, check in and make sure you avail yourselves of that opportunity. But, Allyson, again, I want to thank you so much. This has just been tremendous, the opening statement, but also your ability to respond to these questions, really impressive. And I certainly appreciate all the time and energy that went into this. So, thank you very much for that.
Allyson Ho: Well, thank you, Dean, for the opportunity. And many thanks to the audience for the really great and thought-provoking questions.
Dean Reuter: I will also thank the audience for their time and for their questions. And a reminder to the audience, again, check your emails, and watch our website for future programming, including a panel next week, likely on Dobbs. But, until that next programming, we are adjourned. Thank you very much, everyone.