The XX Factor

Defending Judge Wood, Take Two

In response to my defense of Judge Diane Wood’s rulings on abortion, Ed Whelan, of course, is back on the attack . Which is fine-it’s his job to go after any liberal potential Supreme Court nominee. But he’s wrong about the only point he makes that has any zing. Stay with me, because this is about to get more lawyerly and technical than I’d like.

I defended Wood’s second ruling in NOW v. Scheidler in 2005, in which she left one small part of the case alive, after the Supreme Court reversed her 8-1 on the main substance of the case. (It’s about an old lawsuit against violent anti-abortion protesters; much more about it at the link to my piece above.).Whelan writes:

As Bazelon points out, the Supreme Court granted immediate review of Wood’s second ruling and, in an opinion by Justice Breyer, unanimously (8-0) reversed it. Bazelon asserts that “there’s nothing in Breyer’s opinion to support Whelan’s claim that Wood somehow defied the court’s mandate”:

In fact, the justices agreed to hear that precise question-“whether the Court of Appeals improperly disregarded this Court’s mandate,” but then chose not to answer it, deciding the case instead on other grounds.

The indented sentence from Bazelon is correct (as my own post, linked above, makes clear). But the “In fact” transition is a non sequitur. Bazelon fails to recognize what a remarkable slam it is that the Court granted review on the question whether Wood had “improperly disregarded this Court’s mandate.”

Here’s the thing, though: It’s the parties, not the Supreme Court, that frame questions for a grant of cert. It’s true that the court can edit those questions. But the language drafted by the parties is the jumpiing-off point. If the court includes a question in its grant of cert, and then ultimately ignores it-which is what happened here-then the court is just following format by invoking the cert language before focusing on what the justices care about in the case. Here, that was the conclusion that Wood was wrong on the law about her reading here of the Hobbs Act. But not that she’d defied the Supreme Court’s mandate. Not one conservative justice wrote a mean little concurrence to scold Wood on that point, as any of them could have. They’d all either lost interest or decided she’d done no such thing. Like I said, nothing to see here.