What a close reading of the oral argument in Dobbs reveals.
What a close reading of the oral argument in Dobbs reveals.
A s I summed up at the end of our live blog of Wednesday morning’s arguments in Dobbs v. Jackson Women’s Health Organization, I am, like Ed Whelan and our editorial, now guardedly optimistic about the prospects of the Supreme Court overturning Roe v. Wade. Justices Clarence Thomas and Samuel Alito have long been certain votes to overturn Roe. As a result, all that is needed to end Roe is for the three Donald Trump appointees (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) to vote with Thomas and Alito, or for two of them plus Chief Justice John Roberts to do so. I have long assumed that Roberts might be a sixth vote to overturn Roe but not a fifth vote. After the argument, none of the four gave any strong indication that they are wedded to keeping Roe, and Kavanaugh in particular — who has been the subject of the most worries by pro-lifers — appears to be particularly ready to end the Court’s misbegotten five-decade involvement in abortion law.
Here are the most interesting questions, answers, and exchanges from the Dobbs argument. Scott Stewart, the solicitor general of Mississippi, argued the case for the pro-life side, defending the Mississippi law; Julie Rikelman of the Center for Reproductive Rights argued for the abortion clinic, and Solicitor General Elizabeth Prelogar argued for the Biden administration.
Nice Precedents You Have, Shame If Something Happened to Them
JUSTICE SOTOMAYOR: The sponsors of this bill . . . in Mississippi, said we’re doing it because we have new justices . . . on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible . . .
We won’t be able to survive if people believe that everything, including New York [Times] versus Sullivan — I could name any other set of rights, including the Second Amendment, by the way. There are many political people who believe the Court erred in seeing this as a personal right . . . as opposed to a militia right. If people actually believe that it’s all political, how will we survive? How will the Court survive?
Justice Sonia Sotomayor went into rhetorical overdrive here, suggesting that public perception of the Court would collapse if people suspected that the Court’s decisions change when different presidents are elected and appoint new justices. One wonders where she was during every presidential campaign of my lifetime, and increasingly Senate campaigns as well. Donald Trump ran openly on appointing justices off a public list, and argued that his nominees would overturn Roe. Exit polls showed that Trump’s margin of victory came from his margin with voters who identified the Supreme Court as their No. 1 issue.
The justices themselves are not supposed to follow election returns, but everybody in our democracy understands that if you want the law changed, you use the democratic system to change the justices. Sotomayor certainly wasn’t wringing her hands over this when the Court threw out centuries of law to mandate that states accept same-sex marriages.
The funniest line here is Sotomayor’s concern, or threat, that D.C. v. Heller might get overturned. Set aside the fact that she specifically said “the Second Amendment,” conceding that what she was talking about was reading an explicitly written right out of the Constitution. Just two years after Heller, in McDonald v. City of Chicago, Sotomayor joined a dissent by Justice Stephen Breyer that would have overturned Heller. She’s threatening something she was already willing to do.
JUSTICE KAGAN: Justice Breyer started with stare decisis, an important principle in any case, and, here, for the reasons that Casey mentioned, especially so, to prevent people from thinking that this Court is a political institution that will go back and forth depending on what part of the public yells loudest and . . . preventing people from thinking that the Court will go back and forth depending on changes to the Court’s membership.
Justice Elena Kagan, while she did not go to Sotomayor’s extreme, also gets this wrong by dismissing pro-lifers merely as “what part of the public yells loudest” — during the same week that Senator Jeanne Shaheen is threatening “revolution” if the Court overturns Roe. Voting in elections is not yelling. It’s how the system is supposed to work. The same is true of Justice Stephen Breyer’s concern:
JUSTICE BREYER: We’re an institution, perhaps more, than a court of appeals or a district court. It’s Hamilton’s point, no purse, no sword, and yet we have to have public support. . . . It comes primarily from people believing that we do our job. We use reason. We don’t look to just what’s popular. . . . The problem with a super case like this, . . . where people are really opposed on both sides and they really fight each other, is they’re going to be ready to say, no, you’re just political, you’re just politicians. And that’s what kills us as an American institution.
Who Is the Science?
JUSTICE SOTOMAYOR: In regular cases, courts decide whether science fits the Daubert standard. Obviously . . . under the Daubert standard, . . . a gross minority of doctors who believe fetal pain exists before 24, 25 weeks, it’s a huge minority and one not well founded in science at all. That a small fringe of doctors believe that pain could be experienced between — before a cortex is formed . . .
STEWART: We pointed out as an example, Your Honor, of where Roe and Casey improperly preclude states from taking account for these things. And they should be able to be concerned about . . . an unborn life being poked and then recoiling in the way one of us would recoil.
JUSTICE SOTOMAYOR: . . . Virtually every state defines a brain death as death. Yet, the literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli. There’s about 40 percent of dead people who, if you touch their feet, the foot will recoil. There are spontaneous acts by dead brain people. So I don’t think that a response . . . by a fetus necessarily proves that there’s a sensation of pain or that there’s consciousness . . .
STEWART: And what I’d say . . . is this, Justice Sotomayor, is that the fundamental problem with viability, it’s not really something that rests on — on science so much. It’s that viability is not tethered to anything in the Constitution, in history, or tradition. It’s a quintessentially legislative line.
A couple of things here. One, Sotomayor is wrong about the science on fetal pain. Two, it seems telling of her mindset that she compares an unborn child to the twitching of a dead body. Three, it is hilarious to watch Sotomayor talk about Daubert (the governing standard for when expert testimony is reliable enough to be used as evidence in court), because one of her biggest screw-ups as a Second Circuit judge was a case where she mangled the Daubert standard so badly that her own circuit court had to go back a few years later and explicitly “disavow” the hopeless mess she had made of the law in that area.
Fourth and most important, there are three ways to deal with the scientific evidence on the humanity of the unborn, their capacity for pain, the time of viability, and other abortion-related issues. One is to say that Roe has settled those questions for all time based on the scientific evidence as it stood in 1973. The second is to have courts revisit the legal issues as their scientific basis evolves. The third is to have legislatures rather than courts evaluate the balancing of scientific evidence. Only the first of these three is consistent with the pro-Roe view that the courts can never revisit the correctness of Roe and can never let the political branches weigh in. Stewart, by embracing the third option, is taking the path that allows the most flexibility in continually reevaluating the state of scientific knowledge.
Unprecedented
CHIEF JUSTICE ROBERTS: Was viability an issue in [Roe]? I know it wasn’t briefed or argued. . . . In fact, . . . it’s an unfortunate source, but . . . in his papers, Justice Blackmun said that the viability line . . . actually was dicta. And, presumably, he had some insight on the question.
STEWART: . . . I’d add, Your Honor, Justice Blackmun in . . . his papers pointed out the arbitrary nature of it . . . and the line-drawing problems –
CHIEF JUSTICE ROBERTS: . . . Casey said that that was the core principle or a central principle in Roe, viability. It said that after tossing out the trimester formula, which many people thought was the core — core principle. But was viability at issue in Casey?
STEWART: I don’t think it was squarely at issue, Your Honor . . . . It’s a little hard not to take the Court at its word when it emphasized that viability . . . is the central part of . . . Roe’s holding and saying that it is reaffirming that. . . . But the Court . . . did not face a law like this certainly, Mr. Chief Justice.
What Roberts is driving at here is perhaps a way around precedent, or at least a way of undermining precedent. A longstanding critique of the 1992 Planned Parenthood v. Casey decision, which by a 5–4 vote refused to overturn Roe and delivered a ponderous lecture on the sanctity of precedent while doing so, is that Casey didn’t actually treat the Roe precedent as binding. Instead, it rewrote the Roe trimester framework, in which the state’s ability to regulate abortion varied by the trimester of pregnancy, and instead drew a line at when the fetus is viable outside the womb — which should be a moving target, given the great strides made in neonatal health care since 1992, let alone 1973.
But wait, Roberts is asking: If the viability standard was never properly considered by the Court in either case, doesn’t the Court today have a lot more room to make a new rule without overruling those decisions? This is a search for middle ground that Rikelman and Prelogar viewed as a trap that could kill Roe by a thousand cuts over time, so they rejected Robert’s overture. But in doing so, they just may have sealed Roe’s immediate doom. The exchange also signals a way in which Roberts could talk himself into the view that Roe and Casey are not such firmly settled precedents because of how Roe in particular rushed ahead to decide these issues without a proper evidentiary record.
Making It Up
JUSTICE SOTOMAYOR: Counsel, there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.
And, here, in Casey and in Roe, the Court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can’t intrude on them. We’ve recognized them in terms of the religion parents will teach their children. We’ve recognized it in . . . their ability to educate at home if they choose . . . We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry. I fear none of those things are written in the Constitution. They have all, like Marbury versus Madison, been discerned from the structure of the Constitution. Why do we now say that somehow . . . Roe and Casey are so unusual that they must be overturned?
STEWART: Your Honor, they did not deduce those from the structure of the Constitution. They . . . pointed to the 14th Amendment and . . . reasoned that privacy in Roe, autonomy and similar values in Casey led to a right to abortion. That’s not how this Court traditionally does things, including in the vast run of cases that Your Honor ran through. The Court looks to history and tradition. And, here, those decisively reject the proposition that states cannot legislate comprehensively on abortion before, after viability, and all throughout. So . . . it’s history and tradition, Your Honor.
This, again, shows how poorly Justice Sotomayor understands her job. She’s wrong about Marbury. It is true that judicial review is implied from the nature of Article III’s grant of “The judicial Power of the United States” to “one supreme Court” rather than spelled out explicitly, and it is true that it was contested among the Founding generation (Jefferson hated it). But it is flagrantly untrue to say that it “was totally novel at that time.” Alexander Hamilton argued in Federalist No. 78 that the judicial power to set aside legislation that conflicted with the Constitution was essential to the whole project of a constitution with limited powers. Judicial review was already practiced in American state courts. Stewart has the better of this argument: The proper approach is for the Court to look at text, structure, history, and tradition. That leads to some powers and rights being implicit in the text. It does not, as Sotomayor seems to think, mean that if you imply anything at all that is not explicit in the text, you can imply anything you want regardless of whether it’s in the text.
I’d go further than that. In Catholic doctrine, we have the concept of scandal: the particular sin when a person teaches something that is untrue (say, teaching that a sin is not a sin), and thereby leads others into sin. It is the sin most forcefully condemned in the Gospels. Roe as a scandal in an analogous sense: It is such an obvious offense to the rule of written law that it operates as a teacher of anti-constitutionalism. In order to embrace Roe, one must embrace an entire theory of justification for constitutional law without the text or history of the Constitution. Sotomayor argues here that it is necessary to take an “anything goes” approach to the text, and she does so because she is bending everything in service of Roe.
Not Today
JUSTICE BARRETT: Would a decision in your favor call …any of the cases . . . that Justice Sotomayor is identifying into question?
STEWART: No, Your Honor . . . First of all, I think the vast run of those cases, and some mentioned . . . Griswold, Lawrence, Obergefell, these . . . are cases that draw clear rules: You can’t ban contraception, you can’t ban intimate romantic relationships between consenting adults, can’t ban marriage of people of the same sex. Clear rules that have engendered strong reliance interests. . . . I’d add none of them involve the purposeful termination of a human life. So those . . . two features, stare decisis and termination of a human life, Your Honor, puts all of those safely out of reach if the Court overrules here.
Two things are happening here. One, Barrett is throwing Stewart a lifeline, to explain why ruling in his favor doesn’t require the Court to tear down a bunch of other precedents outside the abortion area. The fact that she lobbed him that softball should give some indication of where her head is on this case.
On the other hand, Stewart is being disingenuous. Griswold, Lawrence, and Obergefell present some different issues from Roe, and there really is not likely to ever be another real case that asks the Court to reinstate bans on contraceptives or the sodomy laws. Griswold and Lawrence themselves were essentially brought to the Court by parties who wanted those laws done away with. And there would be some more significant reliance issues if the Court were to overturn Obergefell¸ at least among marriages recognized since that decision in states that would otherwise have banned them.
But all three decisions did spring from the same interpretive errors as Roe. If the Court says that decisions that are created out of whole cloth, based only on vague ideas of substantive due process, can be overturned, then it is calling into question a handful of its other precedents in the area of sexual liberty. Justice Sotomayor called that out: “All of those other cases — Griswold, Lawrence, Obergefell — they all rely on substantive due process. You’re saying there’s no substantive due process in the Constitution, so they’re just as wrong according to your theory.”
The better distinction is what Stewart closes with: The state interest in protecting human life is a compelling one, more compelling even than the interest in fundamental institutions such as marriage, and surely more compelling than more general interests in public morals. That does not mean those cases were right; it does mean the Court has a more vigorous interest in righting this particular wrong.
CHIEF JUSTICE ROBERTS: On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I’ve actually never quite understood how you evaluate that. Is it wrongly decided based on legal principles and doctrine when it was decided or . . . in retrospect? Because Roe — I mean, there are a lot of cases around the time of Roe, not of that magnitude but the same type of analysis, that . . . went through exactly the sorts of things we today would say were erroneous, but do we look at it from . . . today’s perspective, it’s going to be a long list of cases that we’re going to say were wrongly decided.
If you asked him, Justice Thomas would tell him, “You think you have a long list?” But again, the wrongness of a decision is not the only factor.
I Was Told There Would Be No Math
JUSTICE SOTOMAYOR: Right now, forcing women who are poor — and that’s 75 percent of the population and much higher percentage of those women in Mississippi who elect abortions before viability — they are put at a tremendously greater risk of medical complications and ending their life, 14 times greater to give birth to a child full term, than it is to have an abortion before viability.
75 percent of the population lives in poverty? Even giving the benefit of the doubt that Justice Sotomayor meant 75 percent of women, the actual percentage in Mississippi, one of the nation’s leaders in poverty, is 19.6%.
The Case Stays
CHIEF JUSTICE ROBERTS: You know, in your petition for cert, your first question and the only one on which we granted review was whether all pre-viability prohibitions on elective abortions are unconstitutional. And then I think it’s fair to say that when you got to the brief on the merits, you kind of shifted gears and talked a lot more about whether or not Roe and Casey should be overruled, and I wanted to give you a chance to explain that.
STEWART: Sure, Your Honor. So a couple of points. You know, at the petition stage, we . . . identified for the Court three questions. We emphasized, as you do at the cert stage, hey, this is important; only this Court can resolve it. We emphasized, I believe it was five times, that the Court was at the least going need . . . to need to reconsider, revisit, or reevaluate its precedents. And we asked the Court to at least get rid of a viability line or any suggestion of a viability line . . .
…It was kind of the shift you go from cert state to merits stage. The Court granted one question. That question fairly includes what is the correct standard.
CHIEF JUSTICE ROBERTS: Well, it fairly includes the broader arguments you raised. I’m not suggesting that. But, on the other hand, it presumably included the viability question as well, because that’s what you talked about in that one sentence.
If you were puzzled by this exchange, it happened because there was a desperate, last-ditch effort to convince the Court to throw out the Dobbs case on the theory that the request to overrule Roe was not properly the question the Court agreed to hear when it took the case. That’s ironic, of course, because Roe itself went far beyond the question presented. What’s noteworthy is not just that Roberts was sympathetic to Stewart’s argument, but that no other Justice showed the slightest interest in dismissing Dobbs without a decision.
Let the People Decide
JUSTICE KAVANAUGH: I want to be clear about what you’re arguing and not arguing . . . To be clear, you’re not arguing that the Court somehow has the authority to itself prohibit abortion or that this Court has the authority to order the states to prohibit abortion as I understand it, correct?
STEWART: Correct, Your Honor.
JUSTICE KAVANAUGH: And as I understand it, you’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process? Is that accurate?
STEWART: Right. We’re . . . saying it’s left to the people, Your Honor.
JUSTICE KAVANAUGH: And so, . . . if you were to prevail, the states, a majority of states or states still could . . . and presumably would continue to freely allow abortion, many states; some states would be able to do that even if you prevail under your view, is that correct?
For pro-lifers who worried that Kavanaugh would be the swing vote for saving Roe, this was the most important exchange of the entire argument. Kavanaugh said seven times in the argument that Stewart’s argument was that the Constitution was “neutral” on abortion or that the Court should “return to the position of neutrality.” The fact that he characterized the argument in this way rather strongly suggests that he does not regard the end of Roe as a radical thing.
Of course, there are those who have argued — even in amicus briefs in this case — either that the 14th Amendment treats the unborn as “persons” entitled to legal protection, or at least permits Congress to pass legislation defining them as such. But that is not Stewart’s argument, and the Court does not need to address it to take the step of doing away with Roe.
The Company We Keep
CHIEF JUSTICE ROBERTS: I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those are your — share that particular time period.
RIKELMAN: . . . First, that is not correct about international law. In fact, the majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier. So, for example, Canada, Great Britain and most of Europe allows access to abortion right up until viability, and it also doesn’t have the same barriers in place.
As Alexandra DeSanctis has noted, when you look at the actual laws in Europe, Rikelman was flatly misleading the Court, and that says something about the strength of her argument. Also, Roberts clearly recognizes how extreme our abortion law is, with the comparison with China and North Korea. Maybe that won’t lead him all the way to get rid of Roe; he seemed to be casting about for some way to allow more restrictions on later-term abortions without getting entirely out of the business. But it is certainly not heartening for the clinic’s case.
Adopting the Unwanted
JUSTICE BARRETT: Ms. Rikelman, I have a question about the safe-haven laws. So Petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child after abortion, and I think the shortest period might have been 48 hours if I’m remembering the data correctly. So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don’t the safe-haven laws take care of that problem?
. . . As I read Roe and Casey, they don’t talk very much about adoption. It’s a passing reference that that means out of the obligations of parenthood. But, as I hear this answer then, are you saying that the right as you conceive of it is grounded primarily in the bearing of the child, in the carrying of a pregnancy, and not so much looking forward into the consequences on professional opportunities and work life and economic burdens?
Barrett, as an adoptive mother of two as well as a birth mother to five other children, speaks with some particular authority on this point. That shouldn’t matter — the law is the law — but it is harder for the advocates to just brush off her take on this. And of course, motherhood hasn’t kept her from the pinnacle of her profession.
Your Best Case
RIKELMAN: There was a tradition under the common law for centuries of women being able to end their pregnancies. But, in addition, when it comes to decisions related to family, marriage, and childbearing, the Court has done the analysis at a higher level of generality, and that makes sense because, otherwise, the Constitution would reinforce the historical discrimination against women . . .
JUSTICE ALITO: Well, you just mentioned the common law, so let me ask you a couple of questions about history. Did any state constitutional provision recognize that abortion was a right, liberty, or immunity in 1868, when the Fourteenth Amendment was adopted?
RIKELMAN: No, Your Honor, but it had been allowed under the common law for many years.
JUSTICE ALITO: Does any judicial decision at that time or shortly or immediately after 1868 recognize that abortion was a right, liberty, or immunity?
RIKELMAN: There were state high court decisions shortly before then, Your Honor, talking about the ability of women to end a pregnancy before quickening.
JUSTICE ALITO: What’s your best case?
RIKELMAN: For the right to end a pregnancy, Your Honor?
JUSTICE ALITO: Uh-huh.
RIKELMAN: Allowing a state to take control of a woman’s body and force her to undergo the physical demands, risks, and life-altering consequences of pregnancy is a fundamental deprivation of her liberty. And, once the Court recognizes that that liberty interest deserves heightened protection, it does need to draw a workable line, and viability is a line that logically balances the interests at stake.
This is terrible lawyering by Rikelman. When you’re talking about the case law and the judge asks, “What’s your best case?” you are not being asked for your favorite rhetorical summary. You are being asked to cite a specific judicial opinion. And Rikelman, who had just broached the subject of 19th-century case law, couldn’t think of one to cite.
There are three things every lawyer has to have a ready answer to, in any argument to a judge: (1) What case or statute supports your argument? (2) where is that in the record? (3) what are you asking me to rule? I have seen lawyers fail to have an answer to each of those, and it is just a deadly moment in court. You can lose a case right there.
Also, notice that Rikelman cannot even get her story straight whether abortion rights were a traditionally recognized right, or whether they are necessary to remedy “historical discrimination against women.”
Don’t Know Much About History
JUSTICE ALITO: What was . . .the principal source that the Court relied on in Roe for its historical analysis? Who was the author . . . ?
RIKELMAN: I apologize, Your Honor, I don’t remember the author. I know that the Court spent many pages of the opinion doing a historical analysis. There’s also a brief on behalf of several key American historian associations that go through that history in detail because there’s even more information now that supports Roe’s legal conclusions.
As Ramesh Ponnuru has detailed, much of Roe’s historical analysis was based on shoddy history by an activist named Cyril Means. Alito has clearly read the briefs detailing this. Rikelman could not run fast enough away from discussing the erroneous history that underlies Roe.
Selective Precedents
JUSTICE KAVANAUGH: History helps think about stare decisis, as I’ve looked at it, and the history of how the Court’s applied stare decisis, and when you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed. If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent.
Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person/one vote. West Coast Hotel, which recognized the states’ authority to regulate business. Miranda versus Arizona, which required police to give warnings . . . about the right to remain silent . . . Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. Mapp versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Gideon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.
In each of those cases — and that’s a list, and I could go on, and those are some of the most consequential and important in the Court’s history — the Court overruled precedent. And it turns out, if the Court in those cases . . . had listened, and they were presented . . . with arguments in those cases, adhere to precedent . . . the country would be a much different place.
Kavanaugh was not buying the effort to paint the overruling of precedent as an extreme rarity. That should not surprise us; he’s been delving into the Court’s history in search of a more rigorous theory of stare decisis for some time, clearly with one eye on Roe.
JUSTICE SOTOMAYOR: Of all of the decisions that Justice Kavanaugh listed, all of them . . .virtually, except for maybe one, involved us recognizing and overturning state control over issues that we said belong to individuals . . . correct?
GENERAL PRELOGAR: That’s right, Justice Sotomayor, and I think that that is a key distinction with the list of precedents that Justice Kavanaugh was relying on.
There has never been any such distinction drawn by the Court. If anything it is bizarre to say that the Court should be less willing to recognize its errors when it has taken an issue away from the democratic process. What was worse, after all: Plessy v. Ferguson, which left black equality to the mercy of varying state governments, or Dred Scott v. Sandford, which completely prohibited Congress from banning slavery in the territories, foreclosing progress entirely?
Wrong From the Start
JUSTICE ALITO: Is it your argument that a case can never be overruled simply because it was egregiously wrong?
GENERAL PRELOGAR: I think that at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case . . .
JUSTICE ALITO: Really? So suppose Plessy versus Ferguson was re-argued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down, and now it should be overruled?
GENERAL PRELOGAR: It certainly was egregiously wrong on the day that it was handed down, Plessy, but what the Court said in analyzing Plessy to Brown and Casey was that what had become clear is that the factual premise that underlay the decision, this idea that segregation didn’t create a badge of inferiority, had been entirely mistaken . . .
JUSTICE ALITO: Is it your answer that we needed all the experience from 1896 to 1954 to realize that Plessy was — was wrongly decided? Would you answer my question? Had it come before the Court in 1897, should it have been overruled or not?
GENERAL PRELOGAR: I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided, and the Court realized that and clarified that when it overruled in Brown.
JUSTICE ALITO: So there are . . . circumstances in which a decision may be overruled, properly overruled, when it must be overruled simply because it was egregiously wrong at the moment it was decided?
This was a master class by Alito, even if Prelogar never answered his final question. She started off by arguing that only intervening changes could justify overturning an erroneous precedent, but she could not possibly argue — especially on behalf of an elected administration — that it would ever have been right to follow Plessy. Which made Alito’s point: a decision that was egregiously wrong from the beginning — based on bad law, bad science, and bad history, taken up by irregular procedures, disingenuously reaffirmed, should command no respect.