Bench Memos

Re: Emily Bazelon’s Feeble Defense of Diane Wood’s Abortion Rulings

Slate’s Emily Bazelon takes issue with my statement that the Supreme Court’s grant of review on the question whether Judge Diane Wood had “improperly disregarded this Court’s mandate” amounted to a “remarkable slam.”  In Bazelon’s words:

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 jumping-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.

Bazelon is correct that the petitioner frames the questions in its certiorari petition.  But beyond the fact (which she acknowledges) that the Court can recast the questions on which it grants review, it’s also true the Court frequently selects among the questions in a certiorari petition, sometimes, say, granting on one and denying on the others.  So the fact that it granted on the question whether Wood had “improperly disregarded this Court’s mandate” is, indeed, striking.

Bazelon’s effort to read backward from the Court’s ultimate disposition of the case is meritless.  The fact that the Court ultimately decides a case on the basis of one question on which it granted review rather than another doesn’t suggest that the Court concluded that it was wrong to grant review on the second question. 

Bazelon, of course, is right that the Court didn’t rule that Wood had defied the Court’s mandate.  (I’ve made that clear.)  But beyond the fact that the Court granted review on that question, it’s also noteworthy (as I’ve pointed out) that the last sentence of Justice Breyer’s unanimous opinion goes out of its way to prevent any further mischief by Wood: “The judgment of the Court of Appeals is reversed, and the cases are remanded for entry of judgment for petitioners.”  It’s not surprising that that resolution satisfied those justices (conservative or otherwise) who had voted to grant review of the question whether Wood had improperly disregarded the Court’s mandate.

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