Monday, November 29, 2021

With Amici Like These: Two Awful Briefs From Mississippi's Insurrectionist Friends

 by Michael C. Dorf

On Wednesday, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, a challenge to Mississippi's Gestational Age Act, which, with limited exceptions, forbids abortions after 15 weeks into pregnancy. The law clearly violates the Constitution under existing doctrine. To be sure, Mississippi's original certiorari petition contended that the questions it presented "do not require the Court to overturn" Roe v. Wade or Planned Parenthood v. Casey, but the state's merits brief and numerous supporting amicus briefs ask the Court to do just that. And for good reason. Mississippi cannot plausibly win the case otherwise. As Judge Patrick Higginbotham wrote for the Fifth Circuit panel that struck down the law, "[i]n an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability," which occurs well after 15 weeks.

That is not to say it's impossible to imagine a completely dishonest opinion from the Supreme Court ruling for Mississippi but purporting to leave existing precedent undisturbed. Perhaps the Court will say that viability now occurs earlier than it did in 1973--which is sort of true but irrelevant in Dobbs. Earlier this month, the Guinness Book of World Records recognized a baby born at 21 weeks gestation as the most premature infant ever to survive. That's terrific news for the baby and his family, but as even the physician who achieved this medical miracle acknowledged, at 21 weeks the odds against survival are very very long. And also, 21 weeks is not 15 weeks. Put simply, if the Court wants to rule for Mississippi and lie about what it's doing, the falsehood will be apparent for anyone who cares to see it.

So maybe the Justices are planning to tell the truth. The Supreme Court does not review federal appeals court judgments that correctly apply current case law, unless they conflict with other lower court rulings (and the Fifth Circuit decision does not) or the four or more Justices who voted to grant review are considering changing the law. Accordingly, there is a good chance that the Court will eliminate or curtail the abortion right in Dobbs.

Regular readers of this blog know I would not welcome that outcome. An amicus brief on behalf of myself and twelve other constitutional scholars offers the Court reasons why it should not overrule its abortion precedents. In the balance of today's essay, I want to highlight two very bad amicus briefs filed in support of Mississippi. Interestingly, they come from prominent opponents of representative government.

The top-line lawyer on the amicus brief of the Claremont Institute's Center for Constitutional Jurisprudence is John Eastman--last seen advising then-Vice President Pence that he could unilaterally reject certified Electoral votes to give Trump allies in state legislatures time to facilitate a bloodless coup and then speaking immediately after and praising Rudy Giuliani's speech at the January 6 rally, thereby apparently endorsing Giuliani's call for "trial by combat."

Eastman headlined Claremont's amicus brief after his co-starring role in the coup attempt but before details of his behind-the-scenes involvement were reported. Whether Claremont might have chosen a different lawyer were Eastman as infamous in July as he became in September is unclear. In any event,  the brief is . . . how to put this politely? . . . bad.

For one thing, there's the matter of basic competence. For example, at page 10, we find the following statement: "In Roe and Casey, the Court relied on a 'liberty' interest that does not reasonably or historically fall within the text of the Constitution – the liberty to terminate the life of an unborn child. CITES." Presumably, Eastman and his co-author on the brief intended to cite something authoritative for that particular point but forgot to proofread and thus left in "CITES" as a placeholder. That's a pretty foolish blunder in a brief that is only 13 pages long, but if the brief were otherwise good, one would overlook it.

The Claremont brief is not otherwise good. It argues that a conflict between a woman's liberty to have an abortion and a fetus's life should be resolved in favor of the fetus. That's not prima facie crazy. In many contexts, it makes sense to consider the relative weight of various interests, and other things being equal, life does seem more basic than liberty. But to get the conclusion that the life of a zygote, embryo, or fetus outweighs the liberty of a person in whom it gestates, the Claremont brief relies on a quotation from Blackstone and one from Founder James Wilson expressing the view that human life begins when the fetus first "stirs in the womb."

When does the stirring begin? Justice Blackmun's Roe opinion took account of the fact that at common law abortion was not a crime before "quickening," a term that is synonymous with "stirring in the womb" but appears nowhere in the Claremont brief. Justice Blackmun's opinion placed quickening as occurring "usually from the 16th to the 18th week of pregnancy." Using a variant on the term "quickening" 27 times, the Roe opinion traces the concept's role in English, colonial, and U.S. law. The Claremont brief does not offer an opposing view, perhaps because lawyers too lazy to proofread their brief are also too lazy to read the case they are asking the Court to overrule. Or perhaps that's unfair. Perhaps Eastman and his co-counsel were simply too busy plotting their next effort to overthrow American democracy to give their amicus brief in Dobbs their full attention. 

In any event, the Claremont brief's (apparently unknowing) invocation of quickening--occurring between weeks 16 and 18--would place Mississippi 15-week law at least just barely on the too-restrictive side of the line. That's not to say that an argument couldn't be made for the Mississippi law's constitutionality if this were a case of first impression. After all, not everything that was permitted by Founding-era common law is a protected constitutional right. Yet the Claremont brief shows no signs that its authors were even aware of the way in which the main evidence they cite points against the result they favor. Nor does the brief say that viability should be replaced by quickening or say why or how the Roe Court's treatment of quickening might be mistaken. Instead, the brief calls for the elimination of the abortion right, even in the earliest stages of pregnancy. There is a complete mismatch between the evidence and argument offered, on one hand, and the conclusion proposed, on the other.

In other respects, the Claremont brief is no more, but also no less, question-begging in its reasoning than the briefs of Mississippi and its other amici. For example, the Claremont brief boldly notes that the freedom "to procure an abortion . . . is not found in the text of the Fourteenth Amendment or anywhere else in the Constitution." Mississippi's merits brief makes the same ostensibly important pronouncement: "The Constitution’s text says nothing about abortion."

This line of reasoning, if taken seriously, would obliterate all unenumerated rights. The right to contraception, to marry, to educate one's children as one wishes, to refuse unwanted medical treatment, to resist a forced abortion, and many more are not found anywhere in the constitutional text. Neither, for that matter, are the various tests the Court has announced to implement the Constitution's enumerated rights, often leading to results that have little basis in the original understanding either. Yet such non-textual tests, like, say, the Brandenburg test, are all that protect the likes of John Eastman from criminal prosecution for incitement to insurrection--if he is indeed protected. But while I think that the not-in-the-text argument fairly applies to both enumerated and unenumerated rights, I'm content for current purposes not to push past the point of saying that the Claremont brief and the similar not-in-the-text claims in the briefs of Mississippi and its other amici would obliterate all unenumerated rights.

Speaking of Mississippi's other amici, we find what we might call an insurrectionist-adjacent brief of Senators Josh (raised fist) Hawley, Ted (let's replay the election of 1876) Cruz, and Mike Lee (whom Trump accidentally called during the insurrection, not to stop or slow it, mind you, but thinking Lee was Tommy Tuberville and could still help him disrupt the vote processing, leading Lee to part company with . . . not Trump but his fellow Utah Senator Mitt Romney). What brilliant legal arguments emanate from this troika of Senators?

The Hawley/Cruz/Lee brief argues that the undue burden test of Casey is confusing and thus unworkable, so therefore not entitled to the respect ordinarily afforded to precedent. It's not an inherently bad argument, although I disagree with it. After all, most of the confusion that we have seen in the nearly three decades since Casey has been the result of judges and Justices who are hostile to abortion rights construing the undue burden test in ways that undermine it, thus creating disagreement with jurists trying to apply the test faithfully. A Supreme Court that wished to clear up any confusion could readily do so by insisting that lower courts apply the undue burden test sincerely or could even reinstate Roe's strict-scrutiny for all abortion regulations. Nonetheless and despite the disingenuousness of the Senators' brief's critique of the undue burden test, that critique at least contains a coherent argument.

However, coherent does not mean persuasive or even relevant. The problem with the argument that the three Senators advance is--and I choose these words carefully--it has nothing to do with the Dobbs case. The entire argument is addressed to the supposed unworkability of the undue burden test that the Casey Court introduced. However, the issue in Dobbs is whether a law that bans abortion before viability is constitutional. That issue implicates Roe directly and Casey's undue burden test not at all.

In Casey, the Court reaffirmed Roe's selection of viability as the time after which states could ban abortion subject only to life and health exceptions. The Casey Court introduced the undue burden test as a means of evaluating regulations of abortion that fall short of prohibitions, including during the pre-viability period. As the Fifth Circuit pithily and accurately summarized the undue burden test: "States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions." Thus, even if the three Senators were right that the undue burden test should be overruled, that would not affect the outcome in Dobbs, which is governed by Roe's viability line, not the undue burden test.

Surely I must be exaggerating, you say? Not at all. The Hawley/Cruz/Lee brief states in four separate places some version of the claim that Casey "abandon[ed] the Roe v. Wade framework altogether," even though that's demonstrably false, because, to repeat, Casey reaffirmed Roe's viability line. Undaunted, the Senate trio proceeds to address all of its arguments to the supposed unworkability of the Casey undue burden standard. Only in what is literally the last line of the brief's argument, do the Senators seem to remember that they want abortion wholly unprotected, so they add that Roe as well as Casey should be overruled--despite the fact that their argument doesn't address Roe's viability line at all.

* * *

Eastman, Hawley, Cruz, and Lee are all former Supreme Court clerks. None of them is old enough to have suffered nor appears to be suffering from cognitive decline. One would therefore think that they are capable of producing high-quality legal work. They have not done so here, presumably because advancement in the right-wing-o-verse runs through shows of team loyalty and, at least with respect to abortion, ideological purity. We can assume that these characters were once good or even excellent lawyers, but by now they don't care enough to perform a minimal proofread (Eastman) or to bother looking into the question presented in the case (Hawley, Cruz, and Lee).

I'll conclude by acknowledging that it's possible to be right, despite the fact that some bad lawyers (or what amounts to the same thing, once-good lawyers who have become political and ideological hacks) make bad arguments in support of your position. The question ultimately is how to evaluate the best arguments for each side of a case. Still, it says something relevant when arguments that echo a party's main points are not just bad but embarrassingly so.


Fred Raymond said...

“….capable of producing high-quality legal work.”

Maybe there’s no way that high-quality legal work would be able to reach the necessary conclusion?

Joe said...
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Joe said...
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Michael C. Dorf said...

Joe: ???

Here's the SCOTUS page for the Questions Presented in Dobbs:

If you click on that, you'll find three questions presented set forth in the petition. You'll also find the notation that when the Court granted cert it limited the grant to Question 1, which, as your second comment notes, asks: "Whether all pre-viability prohibitions on elective abortions are unconstitutional."

So in granting cert, the Court had the opportunity to address undue burden but, recognizing that the Mississippi law doesn't implicate it, chose not to do so. That deliberate rejection of the undue burden question presented makes the decision to address it by Hawley, Cruz, and Lee all the more puzzling.

Joe said...

I see my mistake there. Thanks. So, I just deleted the comments.

Again, "1. Whether all pre-viability prohibitions on elective abortions are unconstitutional" taken literally is trivial. There can be some prohibitions.

The framing is used by some to exaggerate current constitutional policy.

I still don't think "puzzling" is really an honest accounting here. "Inappropriate," perhaps, but not puzzling. Realistically, a change of the current law of abortion rights is probably on the table.

The sole question is to me basically coy. What is the answer? If "yes," how do you apply it? You basically are likely to change the undue burden test somehow.

kotodama said...

The argument "the text of COTUS is silent about [X]" isn't a serious one at all. A 1L or even a high schooler would recognize that. In fact, it's not really an argument either. It's more of just a trite observation. Maybe if you're inclined to be quite charitable, it could be considered the precursor to an argument. But of course, you still have to provide an actual argument following the precursor.

I agree with the OP on the implications of that so-called "argument" for other unenumerated rights. But, I don't think MS and its cronies are that worried about most of those implications. For example, it's well known they despise contraception nearly as much as abortion. Likewise marriage, because nuking that means they can ban gay marriage again. Education it's possible they care, but if you look at cases around that, reactionaries tend to favor arguments based on Free Exercise (FE) instead. That doesn't surprise me either, because they want to avoid reinforcing unenumerated rights. Same for unwanted medical procedures and forced abortion, the latter being essentially a subset of the former. As we're seeing with the current anti-vax (and pro-COVID) nonsense, the reactionaries can get all the mileage they need out of FE without resorting to unenumerated rights. Otherwise, forced procedures are probably just fine with them, especially when it comes to "illegal aliens." Look at the allegations on that subject against ICE under TP's tenure.

My point above is, none of those unenumerated rights are actually that near and dear to reactionaries anyway. So why should they be troubled by the possible negative implications of their argument. But I can think of at least one unenumerated right they do care about: freedom of association. That one formed the basis for APF v. Bonta protecting the supposed "right" of dark money donors to avoid disclosure. In a similar vein, at least in part, it undergirded Janus allowing union members to freeride on all the benefits of membership without having to pay for them.

You can go a lot further with the "not in the text" line of "reasoning" too. What about "right" for corporations? COTUS says nothing about that. What about due process incorporation (no pun!) itself, which reactionaries certainly rely on for FE (although at least Thomas conveniently argues Establishment isn't incorporated!) and the Second Amendment? That's not exactly in COTUS either. Or how about venturing into atextual doctrines outside the rights context, like standing? Again, you won't find that word anywhere in COTUS.

It goes the other direction too, because reactionaries have no problem ignoring text actually in COTUS when it's inconvenient for them. The very first 13 words of the Second Amendment—which make up nearly half the entire text—certainly come to mind. For Eastman in particular, it's clear he's very annoyed by the 14th Amendment's inclusion of a Citizenship Clause.

As for Hawley/Cruz/Lee, I'll grudgingly acknowledge they were fairly skilled legal practitioners—more so the latter two than Hawley—before entering politics. But Eastman? Does anyone genuinely think he's actually "capable of producing high-quality legal work"? I don't know anyone who takes his "scholarship" at all seriously outside of diehard wingnut circles.

But in any event, most of what I and the OP say above about shoddy legal "reasoning" or, for Eastman in particular, shoddy proofreading that wouldn't make the cut in a first grade book report, is pretty much beside the point in a case like this. The fix is already in because MS, Eastman et al., and the 3 Senatorial Amigos know they have 6 highly sympathetic kindred spirits manning the bench on SCOTUS. So why put a lot of effort into legal argument and proofreading when you don't have to? They could just have easily filed briefs consisting of crayon drawings.

Joe said...

Thinking it through, the framing of the question really opens up the possibility of a "limited" opinion, perhaps with 3-4 of the majority clearly saying they are open for more. And, the usual suspects will say how "moderate" the result is & others, including the Strict Scrutiny Podcast, will scream loud enough to scare their dogs.

Michael A Livingston said...

One problem with this kind of argument is that it tends to push out more serious conservative positions, which may be good for liberals but can’t be good for the system in the long run. There is a book about the 2020 Election (Rigged, by Mollie Hemingway) that is rather candid about how the Giuliani-style “broken voting machine” arguments caused courts to lose patience with more serious, if not always convincing, arguments based on Equal Protection, the role of State courts vs. State legislatures, and so forth. I wouldn’t underestimate Sen. Hawley by the way: the ability to say things just-this-side-of-crazy is actually a pretty useful tool for a politician.

kotodama said...

I'm totally guffawing at the thought of "serious ... arguments" put forth by RWers that unfortunately just got lost in the shuffle. The desperation there is staggering. Also, Mollie Hemingway wouldn't recognize a serious argument if she crashed into one going 90MPH.

Finally, the comment about Hawley makes no sense and betrays a lack of reading comprehension. While he certainly says insane things as a politician—and the suggestion that he might not actually believe them is completely irrelevant—this discussion is not about his political activities. It's about his legal work product—his SCOTUS brief. That's what's being evaluated here. And nobody's "underestimating" him either. We don't have to "estimate" anything because we have his actual work product to evaluate and readily conclude that it's a legal dog's breakfast.

kotodama said...

And let's be quite clear on one thing in particular. The failure of the 2020 election challenges had nothing to do with the quality of legal argumentation—even though it was all uniformly abysmal. It had to do with a lack of facts—a complete absence of evidence of fraud or other nefarious conduct. The legal arguments were beside the point. Had such evidence existed—and again, it did not, except in RWers' fevered imaginations—then developing a corresponding legal argument wouldn't have been that challenging.

That someone finds merit in the inane legal arguments suggests that person also buys into the voting fraud and tampering delusion. I'm not sure whether it's more disturbing, embarrassing, or both that in this case such a person also carries on publicly as a law professor at a reputable state institution.

Unknown said...

That’s not completely fair, there is some evidence (not “proof” but “evidence”) of corruption of the electoral process in 2020.

The low quality of the legal work resulted in that it focused on rather insane theories for which not even evidence was proffered, for example that the voting machine company used software to change the votes or that the machines were spirited away to Germany in the middle of the night and the tallies altered.

It seems to be a rather high bar to overturn an election — at a minimum you must show that the # of disputed votes is greater than the winner’s margin of victory. Many jurisdictions also require some kind of showing that removing the disputed votes would actually change the outcome. It is unlikely that any of the legal challenges could have cleared this bar, but that doesn’t mean that nothing untoward happened.

Michael A Livingston said...

@Kotodama. I think you should take a look at the Hemingway book. Not all of the arguments were outlandish by any means. I think she makes a good case that—while not sufficient to overturn the election—the Democrats repeatedly change the rules in ways that had the intent and effect of changing the outcome. That’s not an insignificant point. When and if the Republicans make similar changes, will the Democrats accept the result?

Asher Steinberg said...

A puzzle to me about your view is that, given the actually existing availability of abortions in Mississippi, which are only performed, apparently, up to 16 weeks (perhaps because of some preexisting legal regime prohibiting certain preferred late-term methods of abortion, I don't know), a law requiring abortion clinics to close on Sunday, or a waiting period law, would much more severely impinge on the ability of Mississippian women to get abortions than this law does, as would the regulation I've parenthetically hypothesized. But you call this law a per se invalid ban and the Sunday-closing law a burden that probably isn't undue. It seems to me that both of those two are temporal restrictions and that it shouldn't make a world of difference that one blocks out a continuous block of time and the other a discontinuous (but practically speaking) greater amount of time.

kotodama said...

Oh, I've seen plenty of Hemingway's RW hackery and conspiratorial thinking already, so thanks for the recommendation, but no thanks!

I know that Hemingway (and you too apparently) gets really bent out of shape when blue states take steps to expand the franchise, especially to—horrors!—"those people" who live in "urban areas." But as a legal matter, it actually is quite insignificant. Nobody else's legal rights are violated when that happens. But surely a tenured law professor didn't need to consult a book subtitled "How the Media, Big Tech, and the Democrats Seized Our Elections" written by [checks notes] someone with an econ BA to realize that, right?

As to "[w]hen and if the Republicans make similar changes" I would absolutely welcome that. But it's not like I need to hold my breath or anything. We've already seen countless examples of them reducing access to the franchise.

Asher Steinberg said...

Likewise, I would say that the right to vote also is adjudicated under an undue-burden test (Casey even cites Anderson v. Celebrezze); that that entails, at the least, some right to vote during a meaningful portion of the 24 hours that make up Election Day; that no one would call a law that closes the polls at 8 instead of midnight a "ban" on voting from 8 to 12, and that rather a challenge to such a law would turn on whether closing the polls at 8 substantially burdens the right to vote; and that the law in Dobbs is no different, analytically, except for most of the population to which it applies, less burdensome (and also a smaller reduction of the window in which the right at issue can be exercised, given its availability in Mississippi).

Unknown said...

If you live in a state that expands the franchise to people without ID, there is the chance that someone will maliciously or accidentally vote in your name, depriving you of your vote. This surely violates your legal rights.

You can say that the risk is low, and worth it to extend the franchise, but you can’t say categorically there is no impairment of anyone’s rights.

(Aside from the fact that any invalid vote being counted impairs the legal rights of everyone to a free and fair election)

Joe said...

the law in Dobbs is no different, analytically, except for most of the population to which it applies, less burdensome (and also a smaller reduction of the window in which the right at issue can be exercised, given its availability in Mississippi).

Given its availability ... and why is it is limited?

"perhaps because of some preexisting legal regime prohibiting certain preferred late-term methods of abortion, I don't know"

The reason would be useful to know. If a preexisting legal regime already is unduly burdensome, it is not saying much that the new law comparatively isn't much, since the law ALREADY unduly burdens abortion rights. The law also blocks some new provider, including one who might provided limited services for certain cases on an ad hoc basis.

The comparison with voting might be useful on some ground as a doctrinal discussion, but bottom line, abortion and voting are different in various ways. This factors in why current law sets forth a viability line to give people time to have an abortion.

Whatever Prof. Dorf or someone else is saying -- and I'm not clear if that follows from previous comments -- surely other Mississippi laws can also be unduly burdensome.

Finally, to again think big picture here, the clinic (rightly) argues in its brief that the 15 wks ban is in large part a test. Mississippi already also also passed a six week ban. It and other states are pushing the Supreme Court to replace the viability line.

The clinic realizes this is not just about abortions after 15 weeks [and it is not clear how the state determines 15wks -- it can be weeks before the way the clinic does]. Again, it is fine to talk doctrinal questions on some level, but the bottom line is also something that should be addressed while we compare abortion with voting and so on.

marcusbalbus said...

i suppose it was satisfying for you to air our your inner rickles (or was that queen margaret from richard iii?) against your idealogical foes, but it is a hollow victory (crown).

in your occluded judgment driven by this need to demean, perhaps you ignored the reason for attacking casey: if it is invalid, and viability is uncertain, then certainly a ban after 15 weeks (which means no prohibition before) absent casey passes muster.

Michael A Livingston said...

@Kotodama Fall Grades: Irony and Sarcasm A+. Logical Argument B-. Better luck next term!