Bench Memos

Law & the Courts

How the Court Should Proceed in Dobbs—Three Options

A predictable effect, and perhaps part of the motive, of leaking the draft majority opinion in Dobbs is to incite crazy acts by unstable abortion fanatics. The best way for the Court to deter such acts is to issue its ruling in Dobbs forthwith.

The Court of course is free to depart from its usual practices whenever it deems that circumstances warrant departures. In an order in Murphy v. Collier in 2019, for example, the Court granted an application for a stay of execution in March, Justice Alito issued a dissent from that order six weeks later, and Justice Kavanaugh wrote an opinion responding to Alito’s dissent.

One option here would be for the Court to issue the majority opinion in Dobbs as soon as it is final—perhaps as early as today or tomorrow—along with whatever concurring opinions and dissents are ready at that time. Other separate opinions could be issued later, and the majority could then have the opportunity to respond to those separate opinions.

A second and cleaner option might be for the Chief to inform all of the justices that they need to have their votes and opinions ready to go by an imminent date certain—say, next Monday. Dobbs was argued way back on December 1, the draft majority opinion was evidently circulated in early February, and the issues are straightforward, so everyone has had plenty of time to draft opinions.

A third option would be for the Court to issue a short order now that concisely states that a majority of the Court reverses the Fifth Circuit, overturns Roe and Casey, and establishes that rational-basis review will govern state regulations of abortion. The order would also state that the full opinions in the case will be issued later.

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