Jurisprudence

One Legal Strategy to Preserve Roe v. Wade: Flatter Three Conservative Justices

CHEVY CHASE, MARYLAND - SEPTEMBER 13: Pro-choice activists march to the house of U.S, Supreme Court Associate Justice Brett Kavanaugh for a protest September 13, 2021 in Chevy Chase, Maryland. Members of ShutdownDC held a demonstration in support of abortion rights and to protest Supreme Court Associate Justice Brett Kavanaugh. (Photo by Alex Wong/Getty Images)
Pro-choice activists march to the house of U.S, Supreme Court Justice Brett Kavanaugh in Chevy Chase, Maryland. Alex Wong/Getty Images

During Justice Anthony Kennedy’s long reign as a swing vote, Supreme Court litigators catered their arguments straight to him. Savvy lawyers stoked Kennedy’s ego by stuffing their briefs with citations to his past opinions. After he stepped down, the Supreme Court bar began aiming their arguments at the conservative justice most likely to be a swing vote in a particular case. This tactic, however, only worked when the court split 5–4 along ideological lines. Today, the conservatives hold a 6–3 conservative supermajority. To prevail, progressive litigators must secure not just one but two conservative votes. And so these lawyers have started directing their arguments at multiple conservatives in the desperate hope of winning five votes.

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This strategy is on full display in the briefing for Dobbs v. Jackson Women’s Health
Organization, the upcoming challenge to Mississippi’s 15-week abortion ban that could formally overturn Roe v. Wade. Pro-choice lawyers have three conservative justices in their sights: Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. They only need to convince two out of three to preserve Roe, but they’ve tried to boost the odds by flattering all three conservatives whom they seem to view as “gettable.” Here’s how the parties and their supporters attempted to lasso each perceived swing vote.

Chief Justice John Roberts

Roberts’ vote is the lowest hanging fruit for abortion rights supporters. In 2020, the chief justice sided with the liberals in June Medical Services v. Gee to strike down Louisiana’s draconian restrictions on abortion clinics, which were designed to regulate legal abortion out of existence. Roberts didn’t sign onto the liberals’ opinion, which took an expansive view of abortion rights. Instead, he authored a separate concurrence that preserved the core right to abortion before viability while still permitting a slew of restrictions. The chief justice insisted that the court adhere to stare decisis, or respect for precedent, “to keep the scale of justice even and steady” and “avoid an arbitrary discretion in the courts.”

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The plaintiffs in Dobbs rely heavily on Roberts’ June Medical opinion in a bid to nab his vote once again. Their brief cites the chief justice’s concurrence three separate times to emphasize his point that Roe’s “most central principle,” the right to terminate before viability, is now grounded in nearly a half-century of precedent. The Department of Justice, which filed a brief supporting abortion rights, outdo the plaintiffs with four citations to the chief justice’s June Medical opinion. Multiple amicus briefs—“friend of the court” briefs filed by non-parties with an interest in the case—pick up on this strategy as well.

The Justice Department also soft-soaps Roberts with two citations to a very different opinion: His dissent in Obergefell v. Hodges, which established a fundamental right to same-sex marriage. At first blush, Roberts’ Obergefell dissent might seem unhelpful to abortion rights supporters: The chief justice took a cramped view of the “liberty” protected by the Constitution, a bad omen for Roe since the right to abortion rests on this word. But the DOJ seems to think it found a silver lining in his dissent. In Obergefell, Roberts acknowledged that “some liberties” not mentioned in the Constitution are nonetheless “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” He did not reject the concept of unenumerated rights, but simply concluded that same-sex marriage isn’t one of them. The DOJ appears to hope that Roberts might view “bodily integrity” as a right sufficiently “rooted” in America’s “traditions and conscience” to merit protection by the courts.

Justice Brett Kavanaugh

Kavanaugh’s vote will almost certainly be necessary to preserve Roe v. Wade. That’s a problem, since Kavanaugh auditioned for the Supreme Court by stomping all over the right to abortion. After he did not make Donald Trump’s first SCOTUS shortlist, Kavanaugh gave a speech condemning Roe as part of “the general tide of free-wheeling judicial creation of unenumerated rights.” It worked: Kavanaugh popped up on Trump’s revised shortlist. He then cemented his position as frontrunner by voting to prevent an undocumented minor in government custody from terminating her pregnancy. Once on the court, Kavanaugh consistently voted against abortion access.

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Yet the pro-choice parties in Dobbs seem to hope that they can win over Kavanaugh by appealing to his own personal views on precedent. Kavanaugh laid out these views in 2020’s Ramos v. Louisiana, penning a disquisition on stare decisis that seemed to say: Please direct arguments from precedent at me, too! Criticizing the current doctrine as “muddle,” the justice offered “three broad considerations:: Whether the precedent is “egregiously wrong”; whether it has “caused significant negative jurisprudential or real-world consequences”; and whether “overruling the prior decision unduly upset reliance interests.” (In a cryptic footnote, he also noted that the court has tinkered with the parameters of abortion rights since Roe—perhaps implying that precedent is not exactly rock solid.)

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Predictably, many briefs filed in Dobbs zero in on Kavanaugh’s insistence that the court should only overturn a precedent if it is “egregiously wrong.” The plaintiffs, the Justice Department, and many of their supporters cite this portion of Kavanaugh’s opinion in an effort to persuade him to preserve Roe even if he disagrees with it. “At an absolute minimum,” the DOJ writes (citing Kavanaugh), Roe is not so “ ‘egregiously wrong’ as to overcome the powerful stare decisis principles counseling adherence to precedent.” Other amicus briefs are overflowing with citations to Kavanaugh’s Ramos opinion, including one filed by 236 members of Congress that cites it a whopping eight times.

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Such arguments are a long shot. Kavanaugh has repeatedly voted to overturn precedent without even paying lip service to his Ramos roadmap. Just last term, Kavanaugh wrote a stunning opinion overturning a 32-year-old precedent that no party asked the court to overturn. He wrote another opinion that overturned two precedents strictly limiting sentences of juvenile life without parole. Kavanaugh has also signed onto opinions that radically alter precedent without acknowledging their impact. In September, he even allowed Texas’ six-week abortion ban to take effet, even though it flagrantly violates Roe.

Justice Amy Coney Barrett

If Kavanaugh’s vote is a longshot, Barrett’s is a moonshot. Trump put Barrett on the court to overturn Roe. The justice has a track record of opposition to abortion, both in her academic writings and her votes on the court of appeals. Moreover, the justice has served on SCOTUS for less than a year, so pro-choice lawyers eager to cite her past opinions have little to work with. Still, they seem to think they’ve identified at least one Barrett opinion that bolsters their position: Her concurrence in last term’s Fulton v. Philadelphia.

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Fulton asked the Supreme Court to overturn a 1990 precedent called Employment Division v. Smith, which held that a “neutral law of general applicability” does not violate the free exercise clause even if it burdens religion. Conservative groups begged the court to reverse Smith and grant stronger protections for religious liberty. When the court declined to overrule Smith, she authored a concurring opinion explaining her vote. While she was doubtful of the precedent, Barrett explained, she was unsure “what should replace” Smith. “There would be a number of issues to work through” if Smith fell, she wrote, and she was hesitant to swap it out before addressing those questions. Notably, Kavanaugh joined her concurrence in full.

The plaintiffs in Dobbs view Barrett’s Fulton opinion as a ray of hope. Mississippi’s ban begins at 15 weeks, so the state is essentially asking SCOTUS to abandon Roe’s core rule: The government may not outlaw abortions before fetal viability, which occurs around 23 weeks. But it has not identified what should replace that rule, or what protections (if any) the Constitution affords to reproductive autonomy. For instance, could a state outlaw Plan B or regular birth control? The precedents protecting access to contraception are inextricably intertwined with Roe. 

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The plaintiffs and the Justice Department seize on this problem, citing Barrett’s concurrence in Smith. “A party asking this court to take the grave step of overruling a rule of law—one that has been repeatedly reaffirmed—should at least propose and seriously develop an alternative legal framework, ” the plaintiffs write in their brief. The Justice Department echoes this point, arguing that Mississippi “cannot demonstrate that the viability line is wrong—much less that it should be overruled—without identifying an alternative that reflects the significance of the interests on both sides of the balance.” Barrett’s brief concurrence is a thin reed upon which to hang the future of Roe. But that is all these parties have.

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The plaintiffs and the Justice Department do not enunciate the subtext of this case: that overturning Roe would confirm the fact that Trump viewed his Supreme Court nominees as politicians in robes who would enact the Republican Party’s preferred policy positions. His justices have tried to avoid this impression, with mixed success, but they will cement their reputation as partisan hacks if they go along with the GOP’s plan.

For now, progressive litigators are still trying to win over these justices’ votes with obsequious references to their past work. Should the court overturn Roe, these attorneys may need to terms with the reality that they cannot fight a political agenda with flattery and reason.

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