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.