In our longest episode yet, we break down two massively consequential cases: Dobbs v. Jackson Women's Health Organization and New York State Rifle & Pistol Association v. Bruen.
In our longest episode yet, we break down two massively consequential cases: Dobbs v. Jackson Women's Health Organization and New York State Rifle & Pistol Association v. Bruen.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, I think this might be kind of a heavy episode because the court did some stuff since we last recorded, but I think that might be all the more reason to kind of lighten the mood with some banter before we jump in. Although we did get a voicemail-- I'm not going to play this one. We got a voicemail on our voicemail line. So, for all of our voicemails on the voicemail line have been kind of critical. That's why I haven't really playing them. That said, “Why do you guys always start talking about why you haven't recorded? We get it. Just go right into the law stuff.” Come on, man. You've got to fast forward button for a reason. If you don't like the banter, skip it. But if you just want robotic coverage, we don't even try to be funny, even if we fail. There's a lot of other stuff you can listen to and read.
Will: Yeah. We don't even like read ads at the start of our podcast. So, I'm so used to many other podcasts, I have to fast forward through four and a half minutes of like crypto or health, whatever--
Dan: I keep saying we should. I would gladly sell out to crypto or whatever. Crypto is a total scam. But if they want to pay me in actual dollars, not in fake crypto dollars, I'll say whatever you want, but you've got principles, you don't want to do that, that's okay. I don't think we have to make an excuse about a delay because we are back at it pretty quickly. And as a show of how much I love the fans, I am recording this from a vehicle. It's a stationary vehicle outside at my in-laws' house, it is past 9 o'clock. This is the only audio environment that is sonically acceptable here. And that's just how much I love the listeners. Where are you recording from, Will?
Will: I am still recording from home, having escaped from my bedtime duties slightly earlier than usual. I will say, in general, we do have this great tactic of scheduling some family travel around the time the Supreme Court is releasing its most important opinions. I think, last summer, we tried the tactic of just not recording while we were gone, and people got really mad at us. So, we've been sufficiently moved by that to actually give you some content.
Dan: Yeah, there's not really a great solution. I guess we could just plan vacations at a more sensible time, but that doesn't really seem feasible either. So, I think that we're just going to have to make do. Okay, any other banter-related items for us to discuss?
Will: [laughs] Ah, it's good for now.
Dan: Anything on the banter queue. Speaking of voicemails, we did also get a nice voicemail. This didn't come through on the official Divided Argument voicemail line. Actually, I got this on my WashU voicemail line. So, let's go ahead and play this one now.
Brent Martin: Hi, Professor Epps. My name is Brent Martin, I'm a lawyer in Texas. And I actually argued [unintelligible [00:03:31] case in front of the court. I know you don't need compliments from me, but I was going to call you and Professor Baude and just let you know that all of the coverage that I've read in the last few days, you guys were the most accurate in terms of the legal issues involved, including the ambiguities of what was left to be decided later. And so, I just wanted to compliment you. I really enjoy your podcast, and I'm going to leave that [unintelligible 00:03:59] thought of saying that I hope you're having a great day.
Dan: So, there you go. You have one listener, very informed listener who has some authority there who says we got our discussion of one case right. How about that?
Will: Yeah, he actually called my office too, and I happen to actually pick up which shocked him because he was calling rather late at night than he expected me to be in my office. So, that's great.
Dan: Well, how late were you in your office?
Will: I was only like-- I don't know.
Dan: Like 4:00 PM?
Will: It's after 6:00 PM.
Dan: Okay, yeah, that is quite late for a law professor to be in the office.
Will: It's late for a law professor with kids. Before I had kids, I regularly would stay in the office until after 7:00 PM to avoid Chicago traffic, but now that doesn't really fly.
Dan: Yeah. Although we have a lot of actual lawyers who are listening, many of whom, I think, go back to the office at 7:00 PM after a quick dinner break. So, 7:00 PM is not that late.
Will: I usually work from my son's bedroom actually, but that's another story.
Dan: That's where you are right now?
Will: No, that's just usually where I do my post-dinner work.
Dan: Oh, okay.
Will: It's not a good recording environment-- [crosstalk]
Dan: You have your own office though.
Will: Yeah.
Dan: I can see you've got a bunch of bookshelves behind you in the video.
Will: Yeah. But while he's still awake, then-- anyway.
Dan: I guess we have to actually do the stuff. It's a heavier one. Court decided some really big things. Number one, and I don't know if this is the one we're going to talk about first, but certainly one thing we should mention first, is the court did decide Dobbs, the majority opinion that was leaked by Justice Alito overturning Roe vs. Wade did with some relatively minor changes become the law of the land. It got five votes. Roe vs. Wade is overruled. We have some concurring opinions. We have a concurrence in the judgment by Chief Justice Roberts, and we have a dissent jointly signed by the three liberal Justices. Going to be a lot to say about that. We should also talk about Bruen. Do you have the full caption of that case in front of you?
Will: New York State Rifle & Pistol Association v. Bruen or NYSRPA.
Dan: Okay. Yes, this is a very significant Second Amendment case in which the Supreme Court said that discretionary licensing regimes for licenses to carry firearms violate the Second Amendment. And then we may get to, I'd say, a less heavy, less blockbuster case called Vega. Is it Vega? You say it.
Will: I assume it's Vega. Vega v. Tekoh.
Dan: Okay. Yeah. Which is about Miranda, and a little bit more in our nerdy, technical, metaphysical legal question wheelhouse than the other stuff, which is more get your blood boiling, hot button, social issues con law. But we're going to talk about that. So, I don't know, what do you want to talk about first, and what should we talk about first?
Will: Like I said, it's always dangerous when you listen to beginning of the episode, what cases we're going to talk about, because that's probably cursing us not to get through them all.
Dan: Yeah. Well, look, I'm in this car for as long as it takes.
Will: [chuckles] All right. Well, let's just talk about Dobbs first. It happened. I assume nobody needs us to recap the opinion. If you're listening to this podcast, by the time it comes out and haven't read, or at least the syllabus in the Dobbs, you have a very strange way of getting your Supreme Court news.
Dan: Yeah, this is some days after the fact. Hopefully, episode is going to drop on Monday, opinion came out on Friday.
Will: Yeah. But I guess, let’s start with, were you surprised?
Dan: No. Given that we had a preview of the majority, and we had another leak telling us that there were five votes for that, that the position laid out in the majority opinion overruling Roe and that, as of week before the leak or something according to this other leak that things hadn't really changed, I'm not tremendously surprised. Not really at all. Were you? I mean, did you think that things were going to change? Because it's just hard to imagine, and maybe this actually supports the conservatively counter story, that it was just hard to imagine that, once that opinion had had leaked, that there would be dramatic changes to it, unless something unusual happened inside the court.
Will: Yeah. No, that's right. The majority of it didn't change much. There have been various people running red lines to see what's different. And I think basically, the opinion adds some responses to the concurrences and dissents and corrects a few typos and a paragraph or two on a rational basis, and that's about it, which is, I guess, about what I would have expected. What we didn't have before though were the other opinions. The dissents, the concurrences, and that maybe we had some guesses what some of those would say, but maybe not entirely.
Dan: Yeah. Let's maybe take a look at those. Maybe the logical place to start is not exactly in order in which things are laid out, is to talk about the Chief Justice Roberts concurrence in the judgment. Where he's the conservative Justice who does not join the majority, does not agree that it's appropriate to overrule Roe and Planned Parenthood v. Casey. In this case, instead, would basically, I'd say, partially overrule those cases, but would at least in his own understanding, retain part of Roe, the idea that there is some right to choose whether to terminate a pregnancy, but that there can be stricter time limits on the exercise of that right than were previously thought constitutionally permissible.
Will: Right. I mean, in some ways, you can see it as doing to Casey and Roe what Casey did to Roe, retaining the court holding that there's a right to an abortion, but not necessarily keeping the framework for what counts as a violation of that right or what the scope of that right is. But yeah, there's also some sort of question already on branding, on whether how much to see this as like the majority, but on different grounds, how much to see this as totally different. I noticed the-
Dan: Media.
Will: -joint dissent goes out of their way to try to put distance between him and the majority so they can call this a 5-4 decision.
Dan: Yeah. Roe itself laid out a trimester framework, that basically said that there was a very important line at viability. After viability, the state can do a lot more to restrict abortion. But before viability, there's a much greater constitutional protection for a woman and her right to choose. And Roberts says, “That line never made any sense. And instead, the standard should be, when do you have a reasonable opportunity to choose? As long as you have a constitutional right, that goes as far as a reasonable opportunity to choose to end your pregnancy, but not further.” Which would have been sufficient to uphold the Mississippi law, which has a ban at 15 weeks, but would not necessarily require overruling all those other cases.
One question, I was talking about this with a friend of mine, and we had different views on this question. About whether Roberts actually would have wanted to overturn Roe v. Casey, but he just wanted to do it a couple steps down the road, versus he just didn't ever want to actually do it. He just wanted to pare them back, but still always say, “Well, we haven't gotten rid of those cases entirely.” Which one do you think is correct?
Will: I think the truth is that he wanted to leave that undecided. I guess, I think in the face of that, the thing about these incremental steps is for them to be in good faith. I think this one is. There's at least some possibility that you don't know what the next step is. That's one of the reasons you take incremental steps.
Dan: Okay. That's a copout though.
Will: I guess, if you're asking-- [crosstalk]
Dan: Even if you're not 100% certain, what do you really think? If you really think if this had shaped out this way, and then we have another case three years later that tries to move the line a little bit further that really goes beyond the reasonable opportunity, the standard that he lays out-- Well, he doesn't totally endorse. He just says, like, “Look, if we're going to move it, we should move it to there.” What do you think we would have done?
Will: I really don't think it's a copout, and I also think-- let me [unintelligible 00:13:37] one more time, some of the stare decisis factors actually depend on the facts. Like, we would have to see the workability of the new two Justices regime, and if it turned out to be really unworkable, because [Dan sighs] nobody knew, it's different than if it turned out that actually kind of work with this. That said, now I'll give you the answer. If we see this as in the genre of Richard Ray style one last chances that he's documented to the Roberts court, times the court takes the incremental step before taking the ultimate step, I think in every case we know of, he's always been willing to take the last step. He doesn't strike down the Voting Rights Act in Northwest Austin, then he does in Shelby County. The incremental steps towards [unintelligible 00:14:20] and then in the end, he gets there, the incremental steps that lead to Citizens United.
Dan: But we can only figure out whether the first thing is an incremental step by figuring out what the second step was. We have to figure out was this the incremental step or was this the end of the road? I agree that Richard’s framework is really useful, and it describes a lot of the things Roberts and the Roberts Court have done, but it's still-- that framing presupposes how we should characterize what he was trying to do here.
Will: Well, right. But I can't think of a time when there was a case where we thought the court might overrule precedent X. They don't overrule it, but they take us a step in that direction. And then, they later get a case where he votes to reaffirm precedent X. That would be the-- if you saw--
Dan: Yes. Here's the situation where everybody else wants to do it, he doesn't want to do it. I don't know. So, he doesn't get a majority, that's kind of a compromise. He tries to make a compromise, I guess that doesn't get support. My guess in that situation was that he probably wasn't going to want to actually overrule, even though he might want to on the merits that he's such an institutionalist, he does seem to believe a little bit more on stare decisis than a lot of the others, that I'm not sure he would have actually pulled the trigger and just knowing what it's going to mean for the political temperature on the court, which is already white hot. That's just my supposition, but I guess we'll never know.
Will: Two things I want to say with this opinion. One thing that is interesting is just that he decided to publish it, because if you saw this as a gambit, if you saw this as he was trying to broker a compromise or trying to find an intermediate position, once it fails, if you're just being political, it's not obvious that you get any mileage out of publishing it once it just proves that you're failing to be able to broker a compromise.
Dan: You have to do something at that point, you have to either join somebody else's opinion or write a new opinion.1
Will: Yeah, but that's just it. You could just skip to the next step. If we think that he knows that at the end of this intermediate step, in the end, he'd vote to affirm it, he could have-
Dan: Just going along and said, “Okay.”
Will: Right. Or vice versa. If at the end of the day, he's like, “Yes, I would overrule Roe, I'd prefer to get there slower rather than fast,” he could join and say-- it's just interesting that he doesn't do that.
Dan: But also, you're maintaining a certain amount of credibility among your colleagues, which is that if you throw something out there and saying, “I wrote this, I think this is the correct answer,” and then nobody bites on, and you're like, “Okay, never mind.”
Will: Yeah, no, I agree.
Dan: It hurts your credibility.
Will: But that might suggest he cares more about his colleagues think about him than he cares what we think about him, which I think could be good.
Dan: Yeah.
Will: He has one paragraph--
Dan: Really? You think it's better for Justices to be liked by their colleagues than the American people?
Will: Yeah. [laughs] Don’t you?
Dan: No, it's more important that they should be doing jobs that the American people can respect rather than their buddies, like their coworkers.
Will: I mean, the most important thing is they should do a good job. But if to the degree, they're getting a gut check, are they doing a good job, are they choosing from other people who are a bipartisan group of Justices of the United States are a way better guide than--
Dan: Than majoritarian public opinion? I don't know. I don't think that's right at all. I think I want the court to be somewhat hemmed in by public opinion, which it has been historically, maybe it is less so today.
Will: Too much, I think.
Dan: I don't know. I'm not sure that that's right. There's a limit to what we should ask, and we should expect judges to be doing that go beyond public opinion. And there's dangers when they get too far away from where the public is, and I think we might be seeing that happen now and in the future, as the court is going to-- this court is starting to really flex its muscles in dramatically changing the law, which the majority has done here. We should pause for a second and just talk about the implications. Like today, I guess, abortion is now illegal in half the country? I'm not sure. I think some people have done maps, but there's a lot of states that have either preexisting laws that were on the books before Roe, and then never went away and even now those laws are enforceable again. And then, there's other states that have passed trigger laws that go into effect when Roe’s overturned.
Will: Is it obvious to you that the relevant day is Friday, yesterday, rather than waiting until the Supreme Court's mandate issues?
Dan: I was wondering that. I was going through that thought process, but then I thought like, “What does the mandate have to do with anything when you're talking about other cases?” Obviously, the mandate is what matters for the actual case at hand when it gets sent down and has to be followed by lower courts. But once the Supreme Court has issued an opinion stating a definitive interpretation of the Constitution, why is that not the law of the land with respect to other cases?
Will: Right. Well, part of the problem is a little confusing why we treat Supreme Court opinions is the law of the land at all. But the reason that mandate issue's when it does is that there's a period of time where the court, at least purports to invite petitions for rehearing in case they miss something. Obviously, it's not going to happen in this case, but you could imagine in the rare cases where you do successfully file a petition for rehearing and then the court grants it, it'd be a little weird to say-- But that two-week period before the court even officially signed off on it, it becomes law of the land-- [crosstalk]
Dan: Yeah, maybe so.
Will: -flickered out.
Dan: But I mean, something we'll circle back to, I think, just a minute, is there is this question about is there some danger of retroactive liability? For situations where these laws were on the books for a lengthy period of time, while Roe was still good law, and all of a sudden now turns out Roe is no longer good law, do people that acted in reliance on Roe but did things that violated the written positive law in those states, are they now retroactively criminals? That's one problem, but a narrower version of that is what if an abortion doctor goes and facilitates an abortion tomorrow before the mandate comes down? I, as a lawyer, certainly I would not advise someone to do that. Regardless of what the technical answer is about the mandate. I would say don't do that. That's exposing yourself to really, really significant threat of criminal liability in such a state. Once the court has told us that this is not the law anymore.
Will: Yeah. This brings us to Justice Kavanaugh’s concurrence, which maybe we should talk about next. Justice Kavanaugh, I got in a little trouble for suggesting on Twitter on Friday that maybe one of the most important paragraphs people should read is a paragraph in Justice Kavanaugh's concurrence, where he decided to just opine on two of the follow-on constitutional questions. We're going to talk about this in a second. This is interesting because these are two questions that many people are wondering about. From this opinion, everybody is assuming Justice Kavanaugh is the likely fifth vote on these kinds of questions. What he will do is extremely important to anybody just trying to take the legal realist approach to these questions.
Dan: And are these questions well presented in this case?
Will: No.
Dan: Not at all. They're just not presented even a little bit?
Will: Right. And then, he says in this paragraph that these are not especially difficult as a constitutional matter, which is why he feels confident to opine on them. What's funny is that in both cases, his answer, while totally sensible as a practical point of view, is not at all obviously the normal interpretation of the current precedent, which is, of course, exactly why he wants to say it. He says, for example, may a state bar resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel, no citation to-- [crosstalk]
Dan: Yeah, no, case cite at all.
Will: There are cases you could cite, there are clauses you could cite but no cite. And then, the question we just asked, may a state retroactively impose liability or punishment for an abortion that occurred before today's decision takes effect? In my view, the answer is no, based on the due process clause, or the ex post facto clause. Here, he at least cites Bouie v. City of Columbia. We're just kind of about this-- [crosstalk]
Dan: Yeah. Not really. I mean, Bouie is about a case where the Supreme Court says it's a violation of due process to retroactively reinterpret our criminal statute in a way that's totally indefensible based on what came before. Which is not exactly the same thing as saying it violates due process to impose liability on someone when a court changes, reinterprets-- [crosstalk]
Will: Indeed, under existing precedent, they're exactly the opposite thing. Bouie is about the State Supreme Court using its common law power to effectively change the law. And the point is that if it changes the law, it can't change it retroactively. In constitutional cases, the fiction that goes back to Marbury v. Madison of what the court is doing is it's telling us what the law always required, even if something like a decision or a statute preexisting is something different. Justice Kavanaugh did the exact same move in a plurality opinion a couple of years ago called Barr v. American Association of Political Consultants.
Dan: Bouie is not common law, who's interpreting a statute?
Will: Yes. But I think the idea is that the State Supreme Court is using its ability. The reason we defer to State Supreme Court's interpretations of the statute, even if it's not what the Supreme Court thinks it would be, is because as a common law court, the State Supreme Court has some sort of authority to make law with respect to the statute as a matter of state law. I mean, this goes back to Erie-- [crosstalk]
Dan: I thought we just deferred because they were the final expositors of state law and they could say whatever the statute says, this is what we say it says.
Will: Why are they the final expositors of state law is, I think-- there's nothing that says-- yeah, that it's in part because of their different traditional role, I think. But--
Dan: Maybe, that doesn't quite make sense to me, but we don't have to talk about that.
Will: Just to circle back to the one question you're asking, I know that Justice Kavanaugh's concurrence says before today's decision takes effect? So, if I had a client, who really, really, really wanted to avail themselves of the Roe v. Wade in the next 14 days, I think I could write them an opinion letter that says that you have until the decision takes effect under the Supreme Court rules. That's when the mandate issues. You would certainly be rolling the dice, but I think you'd probably be okay.
Dan: Yeah. I mean, that opinion letter, you couldn't rely on that as a defense to later criminal prosecution. Yes. But he does seem to say, “This is how I will answer those questions,” which is, I think, pretty extraordinary. You don't see that very much where someone says, “Look, I'm just going to take these things off the table."
Will: Right. But that's good, isn't it? Isn't it good?
Dan: I mean, it's good for whom?
Will: The country.
Dan: I don't know. It depends on the question, depends on the answer. I guess. I think, in general--
Will: This paragraph--
Dan: Is this paragraph good? I think it's going to give people a certain bit of comfort who are worried about these issues. I don't know if I would endorse the proposition that it is good for Supreme Court Justices just to answer a bunch of disputed constitutional questions in separate opinions when those questions are not at all presented by the case at hand.
Will: Right. But in this case, they are questions that everybody knows that will arise in the future, where he apparently does-- these two questions he thinks are easy. And the alternative is just to keep his mouth shut and potentially give us several years of extremely traumatic litigation and dickering about both these things. Isn't that at least--
Dan: Although, by the way, are we sure Roberts would agree with the interstate travel stuff? I'm not sure. It's not obviously right. Maybe it's right. It’d be good if it were right.
Will: I'm not sure either one is right. I think the travel one is easier to defend, because there is precedent going back to the 1860s, suggesting that interstate travel is a privilege or immunity of citizenship. And I think it's pretty easy to imagine the Chief and Kavanaugh at least getting there. But it's not so obvious that it was obviously before he said, so again, that's the irony of him saying it's easy.
Dan: Yeah, it's not a posture where he's the fifth vote, and you've got four Justices in dissent who we were confident would side with him.
Will: Not completely. Again, people are pretty confident. And these both do have a lot of ambiguities. He says the state can't bar you from traveling to another state to obtain an abortion. Now, can the state punish you upon your return? Citing cases like [unintelligible [00:28:03] v. Florida that say the state has the ability to punish its citizens for criminal acts committed outside the jurisdiction when they return? He doesn't tell us that. Who has jurisdiction over multijurisdictional questions? He doesn't tell us that. These do also maybe give people false clarity if you aren't thinking very many moves ahead.
Dan: Yeah, although it's hard for me to distinguish a law that says, “You can't travel to do this," versus a law that says, "If you did travel to do this, you've committed a crime.” It is not--[crosstalk]
Will: The idea might be you travel and then you stay. We had a lot of cases about the slavery, and the idea was at least for some of these questions, you could travel to another jurisdiction and claim your freedom, but you shouldn't go back.
Dan: If that's really what he's meaning to suggest, something that narrow, I think that would be quite misleading. If you were to say in a later case, “Oh, yeah, I said that. But I didn't mean that you could then return to your home.” I think that would be absurd. If he was trying to draw that distinction here, that would be extremely misleading to people. I don't think that's what he's saying.
Will: I don't think so either.
Dan: [crosstalk] -think that's what he wants us to think he's saying.
Will: Yeah, I don't think he means to draw that distinction, but I don't know.
Dan: Yeah. He also says-- basically doesn't totally answer this question, but just says overruling Roe, does not mean the overruling of other cases like Griswold, which said, states can't be on contraceptives, Loving, which said the constitution prohibits bans on interracial marriage, foul [audio cut] marriage. And he doesn't 100% say those decisions are right. But he does say that this case does not threaten or cast doubt on those precedents.
Will: It's what the majority says too, right?
Dan: Yes. Although it sounds like Justice Kavanaugh was a tiny bit more serious about that majority.
Will: Yeah, okay. Could be. And then, we have Justice Thomas, who also joins the majority, who maybe says the opposite?
Dan: Yes. Just to linger on Kavanaugh for one second. We're going to see another opinion like this little bit later in the episode. But he writes these opinions where he just really wants to be liked. He's just like, “Look, I know I'm doing this thing that a lot of you are going to hate. But let me try to put a nice spin on it and say it's maybe not quite as bad as you think.” And there's things that are good about it, but it just has this smarmy feel to it. It's like, “Oh, please don't hate me for this.”
Will: Okay, I'm going to say the most controversial thing I'm going to say on this episode. I don't think that Justice Kavanaugh cares what we think about him, and I don't think he's writing these things to be liked. I think he's responding to exactly the problem we've been talking about. I think he wants people to respect the court. I think he's trying, maybe unsuccessfully. I don't think it's personal. He's trying unsuccessfully to sell the court's opinion as legitimate in layman's terms. That's probably a fool's errand because people don't read Supreme Court opinions. They read other sources that frame the court’s opinions for their own good, but I think it's not about him. I think this is just he's trying to get people to see that--
Dan: Yeah. Although that's not quite right, because he is saying some things that the majority doesn't say. He's resolving some issues the majority doesn't resolve about these follow-on issues. He's trying to give people confidence about what he thinks, even if it's not what the majority thinks,
Will: Yeah. I think that part is different. But the part I assume you're referring to of, the Constitution is not pro-life, the Constitution is not pro-choice. This is the neutral position. I think is not that part, I think, is not about like, “I am a neutral judge and therefore, everybody should like me.”
Dan: Yes. Although immediately is followed by the part of the opinion where he's like, “Look, I know I settled that stuff. But here's why this maybe isn't quite as bad as you think it is because I'm going to just take certain issues off the table.” That's the part that kind of makes it feel to me he's like, “Come on, guys. Don't totally hate me.” My sense of him has always been that he cares a tiny bit more what the larger legal and political community thinks of him than maybe some of them. I don't think Gorsuch, Alito, Thomas care even a little bit.
Will: Yeah. Maybe, although if he really cared what the legal community thought of him, he could have joined the Chief’s concurrence.
Dan: Yeah. It's complicated. I think that these Justices have different audiences, and you can't satisfy every constituency, which is the problem. But I think that's why I see him as doing the thing he ultimately wants to do, but then trying to be like, “Come on, guys. You still like me, right?” Which is just not going to succeed for him.
Will: That's obviously not going to succeed. And I think he's not dumb enough to think that would succeed. And I think there's this [Dan chuckles] tendency that we all fall into to read-- in terms of reading the tone and emotion behind opinions to read it in light of our preexisting character sketches of the Justices, we saw lots of people describe Justice Alito’s majority opinion as snide and angry and hateful, all these other adjectives were used to apply to Justice Alito. I remain unconvinced that anybody would have applied those adjectives to the opinion if they didn't know who the author was. People are going to think Justice Kavanaugh, that we decided that he was smarmy and careerist, and whatever and now, everything he says people are going to read as if that's what was going on, even if actually he's doing-- [crosstalk]
Dan: It doesn't mean wrong though.
Will: No, it doesn't mean it's wrong and it doesn't mean it's right. I understand nobody's going to believe me, but that's why I think it's my honest opinion.
Dan: Okay. Well, we'll have to let that one go. Justice Thomas goes in a different direction and does not want to reassure people that those other cases, which rest on, in whole or in part, on the doctrine of substantive due process, the idea that the due process clause of the Fifth and Fourteenth Amendments include certain kinds of substantive liberties, which until Friday had been interpreted to include the right to choose an abortion. He suggests that we should actually rethink all of those cases. We should rethink Obergefell and Griswold and Lawrence v. Texas, which said that state sodomy bans are unconstitutional. And this is not what the majority says is going to happen necessarily. That's not what Justice Kavanaugh says is going to happen necessarily, but Justice Thomas does want to do that.
Will: Yeah. I think, in a way, they're not quite conflicting because the majority says nothing in this opinion cast doubt on those cases. And I guess Justice Thomas might say, “Well, fine, it's true. Nothing in this opinion cast doubt on those cases. That said, I would cast doubt [chuckles] on those cases. But it's not that this opinion makes them any--" In Justice Thomas' mind, this opinion does not make those cases any more wrong. They were wrong before and he just continues to push it further. And everybody else says we’ll rule into this one but not the others.
Dan: Yeah. But his opinion does not really change our priors at all. I mean, we always knew he thought all those cases were wrong, and we all already knew that he really doesn't care much about stare decisis. And so, I don't think we gain much new information about the court is likely to do based on that concurrence, which is nobody joins.
Will: Right. Yeah, nobody joins. The one thing I think maybe we made my priors moved a little bit on is, I think, you mentioned this that in Justice Kavanaugh’s list Loving v. Virginia was on the list of safe precedents. And on Justice Thomas's list Loving v. Virginia is not on the list of imperiled substantive due process precedents. Loving, both an equal protection and a substantive due process case. And my guess is that Justice Thomas has read enough of the literature on Loving to think that there is an originalist case for Loving, which is my view as well. So, I think I've moved my prior slightly--
Dan: That’s convenient.
Will: -to thinking he probably genuinely thinks Loving was rightly decided. And there's a good article about this by David Upham that I suspect that he's read.
Dan: That's quite possible. We have those lingering questions, what is the larger jurisprudential significance to this case? What does it mean for other precedents? And then, we have those follow-on legal issues that Justice Kavanaugh purports to resolve. We haven't really talked about the majority opinion that much, but probably the best way to do so, I think, is really through the lens of the joint dissent, which really goes after the majority. I thought it was pretty well done. And it's a long dissent, but I thought it did not fall into the trap of feeling it has to go line by line, literally every single thing the majority says, and point out why like, “Oh, you're misreading this one case from 1802. And actually, the comma was in a different place," or something. I thought he actually was able to stay at a slightly higher level, really hit the majority at its weakest point, but not lose the forest for the trees. Putting aside the merits, what was your reaction to the dissent?
Will: Yeah, I think you're right about that. It was a good example of a dissent that stands on its own. They could have gone into the fight about is Justice Alito right about the state of quickening common law prohibitions on abortion or is Aaron Tang right? It's probably smart not to get in there. Two things I was struck by this. One is, this would have been the opportunity to commit either to the stare decisis path or to the merits path to defending Roe and Casey. I think there's always been an awkwardness of this posture, it'll be even more awkward now that stare decisis doesn't support it, is you could just lean in-- Like Casey just sort of says, “Look, it doesn't matter whether it's right or wrong,” or the whole point is that we shouldn't be asking that question again. Or, given the lack of blood and that kind of attack, you could just say, “Look, I will actually give you the affirmative. I'll write you the opinion that Roe v. Wade should have said.” I thought the opinion was still moving in between those two a little more than them worked for me, but I'm not the target audience.
The other thing I was most struck by is how anti-originalist it was, like more so than a lot of opinions, even separate opinions we've seen from the Supreme Court in a while.
Dan: Yeah, and it did a little bit more work to try to lay out an approach to constitutional interpretation as a real alternative to more rigid originalism. This is why we have to circle back to the majority because the majority does have a fairly lengthy discussion of history, and what was the state of the law and common law. I thought this was actually quite deaf. I found the majority's discussion of the history even when I just read the original draft before I read the dissent, I found it pretty unpersuasive because you can just tell that the majority is, there was this common law distinction between before and after quickening, like when the fetus’ movements could be felt as quickening. And it seems pretty clear, there's a lot of stuff that says like it became a crime at quickening.
Just reading the majority on its own, it's like going through all these hoops. And then, “Well, there's this weird, proto felony murder rule. So actually, the line wasn't there.” The dissent is just like, “Yeah, that wasn't the rule.” And they just cite Blackstone, they're like, “The rule was, for quickening, it wasn't a crime.” End of story. I felt that was actually much more effective than spending 10 pages, going through 20 different treatises, and just revealing how maybe the weakness in that argument. Maybe you would have wanted to see a lot more engagement with the history.
Will: Yeah. I didn't find the majority as weak on that point, and therefore didn't find the dissent as persuasive on that point. But that doesn't mean-- tactically, the dissent might have done the right thing. In a way, I have the same taste to majority opinions maybe as you do in dissents. Justice Alito is a really thorough author. He wants to go into all the details, whether it's the factual record, or each of these cases and to really make the case for everything he thinks is right. And my own view is that if those aren't the outcome determinative details, it's better for the opinion not to dwell on them. I take it out of the majority's view and methodology, ultimately, nothing hinges on most of the little questions, because ultimately, the case for Roe needs to show such a deeply rooted consensus in favor of a right to abortion, that we can use it to preempt democratic decisions today. Even taking Roe’s history on its own terms, Roe doesn't actually show enough to do that.
Dan: Yeah. That's a better argument for the majority rather than really straining hard to show contrary to what most people seem to understand the common law saying, really, you're stretching to claim that abortion was always illegal from conception, which does not seem to have been the common law rule. I thought that majorities' attempts to try to frame it that way were really just not persuasive. But I think that focusing on the other argument, that's at least strikes me as more intellectually honest way to do it.
Will: Yeah. What was wrong with the proto felony murder rule argument?
Dan: Nothing was particularly wrong with it as such. It just seemed like a very thin read on which to contradict what had previously been understood. And that there seems to be a lot of support to understand that this was an important line with the common law drew between when it was a crime and when it wasn't. And then they say, “Well, there's this other distinction between these cases where--,” and just so listeners know we're talking about, "Where if a physician is trying to effectuate an abortion, but then kills the woman, that's murder." And then, this is the basis on which the majority says, “Well, actually, look, that means that abortion was always criminal, regardless of whether quickening had occurred.” And that didn't seem to follow at all. It could be the case that there's all sorts of things that situations where someone can do something that is itself legal, but then if it has a really bad result, maybe we don't give them the benefit of the doubt and do hold them criminally responsible. Maybe we think it's more dangerous. It didn't carry the amount of weight I thought that the majority wanted it to.
Will: One thing you said is helpful is-- this is another example that we're going to depend a lot on your starting point. So, I do think since Roe, a lot of people have repeated that understanding of the common law history. My sense was that before Roe, there was not as much of a historical consensus. There were these kind of edgy articles by one scholar that Roe kind of relies on. So, this is maybe a good example of Roe’s own understandings of the history and so on, maybe of creep that has become deeply rooted in our understandings today [crosstalk] true.
Dan: To the extent that the majority is trying to upset that subtle understanding, it didn't seem to do a particularly persuasive job. If that was wrong that there was no such distinction at common law, I thought the majority would have been able to do a more compelling job of convincing us of that but didn't really seem to do that. All it seemed to convince us of was, “Well, they were a couple of cases that's endorsed this proto felony murder thing. Therefore, what everybody else says is wrong.”
Will: They have a bunch of other sources in the footnotes, but I guess nobody's going to read the sources cited to the footnotes because, again, I don't think anybody's [unintelligible 00:45:25] on this.
Dan: Yeah. There is a subsequent question of whatever the line was, a common law. I mean, that's a different question of whether something was criminal or not at common law does not really tell you whether something was recognized as a right or not at common law. I think you mentioned Aaron Tang, and he's done some work on this. I think he has tried to frame this as like you had a right to a pre-quickening abortion at common law, and I don't quite know if that's the right way to think about it. Just because the common law had not drawn a line in a particular place, does not necessarily mean it would have been understood as a right versus just a line that had been drawn. I don't know.
Will: Yeah. Basically, I'm with you, I think, on what I would have found more persuasive. In defense of Justice Alito’s way of writing this, I wonder if this is almost a form of due process of law. A sense of overruling Roe and Casey is obviously just a huge thing to do and the court feels some obligation to try, even if in some ways, it makes it even less persuasive, to go through all the steps as carefully as it can so at least people who do read the opinion, who read the footnotes, and read the sources cited in the footnotes, even if we don't agree with all the courts calls, really feel like the courts thought it through would give us an answer, even if we would come at it differently.
Dan: Yeah. Although to the extent that some of the arguments seem particularly unpersuasive, it makes the whole thing seem more window dressing, and you're like, “Well, maybe you could just tell me why you're actually doing this because it's clearly not because of this.” I think that the paragraph that really got me was the one on page 18 of the opinion. It says, “Although pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law.” And its evidence that then is in the case is a 732 case in which a judge said of the charge of abortion that he had never met with a case so barbarous and unnatural. Okay, so one judge said it was barbarous and unnatural. And then indictment from 1602, which did not distinguish between a pre-quickening and post-quickening abortion. I did not find that paragraph very persuasive on its own terms, that those are the two sources that it leaned on to support the proposition. I found that quite unpersuasive.
Will: I agree with you about that. It's then followed by the felony murder rule paragraph, and this might have just been an ill-advised paragraph break. Those might really have been meant as one argument.
Dan: That may be true. Although regardless of the felony murder, everybody that is in the majority doesn't really find a way to contest this, if there was an abortion before quickening and nobody died, the adult mother did not die, it wasn't a crime.
Will: But it wasn't a crime, but Hale says it was still unlawful.
Dan: It was still unlawful in the context of the felony murder situation. Okay, we don't have to fight about this. I thought that the dissents did a good job, and this is part of the dissent that I think has to have been written by Justice Kagan. We should talk a little bit about which parts we think are written by which of the Justices. Obviously, because this is a joint dissent, they all had some hand in it. But I think certain parts of it, you can get one Justice's voice more than others. Right?
Will: Yeah. I think you're going to talk about it. Go ahead.
Dan: The part that responds to some of the historical arguments, this is part 13, I think really hits the court fairly for the relevant times for which it's looking at history. On one side of 1868, it goes back as far as the 13th century, but then it says it's not clear what relevant such early history should have. And then cites a decision that came out the day before, which we're going to talk about, if we can ever get to it on this episode, the Bruen case, the Second Amendment case, which is that historical evidence that long predates ratification may not illuminate the scope of the right. And then also, how the majority then looks at other stuff in ways that seem inconsistent with what it has told us the day before when the relevant times for which you could look at legal evidence to figure out whether the right exist.
Will: Yeah.
Dan: I thought that was quite effective.
Will: I thought it was unfortunately effective. There are good answers to all those points, or at least there are correct answers to all those points, we’ll talk about it in a second, but Bruen’s use of the dismissal of the statute of Northampton is very different from kind of the use of Hale that the majority is making here. And there's a huge difference between the substantive process test versus the ways of interpreting [unintelligible 00:50:49] rights. I think there are answers, but I think all the answers seem technical and like you're cheating, and like [unintelligible [00:50:58].
I think the majority's reasoning is quite principled. You can agree or disagree with it, but with a few exceptions, almost the model of what good reasoning for this result would be. I think that the dissent successfully makes it seem unpersuasive and political. And that's like a very effective dissent, if you can take a good opinion and make it seem bad.
Dan: Okay, I don't know where to go with that. What I would say is you are not going to convince me that this proposition is not true. That in writing an opinion like this, and in writing opinion like Bruen, and in how to choose which points in historical record to emphasize, to say are important, to say are unimportant, to say irrelevant, to say are not relevant, there may be better and worse arguments at each of those steps. There's a bunch of discretionary choices, and I think what we see is those discretionary choices end up being made consistently in a way that leads to certain results. I don't think it's just coincidental. That's how the history works out, and it turns out there's all these technical arguments, and it just works out that way. And that's the way it is.
In situations like this, I'm not convinced that the technical details of all the history and whether the statute is relevant from this time are the things really driving the analysis. I think that the Justices decide how the case is going to come out. And then, they backfill the historical arguments, and they lean on people like you to come up with good arguments for why the things that help them are relevant, and the things that don't help them are not relevant, but I think that it is meant to create this illusion of determinate scientific certainty that I don't think is actually present.
Will: Yeah. I don't think it's supposed to seem determinate or scientific or whatever. But I think the historical moves are less-- It may be discretionary in sense, like the court can do what it wants, and nobody can stop them. But I think these decisions are a lot more like defensible on the merits. And that, of course, it's true that the Justices are picking up a lot of this through a more complicated process of reflective equilibrium and reading other sources and thinking what other people they expect to think and all that. So, I think that's all true, but I guess I have a higher opinion of the Justices.
Dan: And also, just having ideological priors, right?
Will: I guess.
Dan: [chuckles] You guess? Are you bound to endorse the claim that ideology has nothing to do with how the court resolves a case, like Dobbs?
Will: I think it has relatively little with how the court resolves Dobbs or Bruen. I think it's much more to do with how the court resolves cases where the legal materials are thinner. I'm assuming we're distinguishing, like political ideology from legal ideology, I assume. Of course, legal philosophy has a lot to how these cases are resolved. But I think the Justices’ policy views about concealed carry licenses are actually pretty marginal, compared to their policy views about policing or something affecting-- [crosstalk]
Dan: In Dobbs, you go through the stare decisis analysis, which we haven't talked about that much, which is the kind of analysis that really requires a certain amount of policy-like judgments, and is much more mushy, much more discretionary, much more flexible. And I think the idea that that is just being dictated by legal methodology, I don't think is persuasive. And I don't think that's right. I think it's driven a lot by what values the majority versus the dissent think are important and how much solicitude they deserve. I don't think this is just, “Well, they're originalist versus not.” Justice Alito isn't even originalist. He mocks it when it doesn't come out the way he wants it to.
Will: Justice Alito isn't originalist but--
Dan: He has said that but that doesn't mean that he actually is.
Will: I agree that it doesn't mean that he is. What you said is a false binary. My point is just the more the Justices talk and think about a legal argument, I think the more the legal argument takes root in their mind and the more work it does. So, in an area where they've been thinking about the legal arguments for 30 years, I think they're all sufficiently habituated lawyers that the legal arguments aren't doing a lot of the work. That doesn't mean the legal arguments have only one right answer or dictate things or whatever, that's math or any of that stuff. I just mean their ideological priors that are getting pushed to the side.
Dan: I guarantee you that Justice Alito has not been working through the legal arguments on this for 30 years. Justice Alito has a view of this matter that he's had for 30 years, and that he is writing out a bunch of legal arguments. But it's not like he's needed 30 years to let those arguments just aid for him to finally reach the conclusion that Roe is wrong and should be overruled, right?
Will: I'll just back up and say I really don't have as much confidence as maybe you do what all the Justices think about abortion policy, or what they think the policy outcomes in this position will be or a lot of that stuff. And I think that stare decisis questions about what do you do about overruling precedent is something that the Justices think about all the time.
Dan: I certainly suspect that this decision has had kind of a target on its back for decades in the conservative legal movement. Roe has, and so this decision is the culmination of that multigenerational effort. In some sense, it was preordained by the amount of hardcore conservative Justices that the Republicans were able to get on the bench.
Will: All I mean to add is that in my experience being in the smoke-filled rooms where the people talk with the target on their back making this decision, the talk is about law rather than about babies. Even over drinks, people at the Federal Society have an obsessive knowledge of the scholarship on substantive due process and what Alexander Hamilton said about in the New York convention and stuff like that, and that's like even among friends what people steeped into stuff--
Dan: When you get to the arguments about stare decisis and questions like reliance, and there's this totally different conception of reliance between the majority and the dissent, where the majority seems to think like, “Well, now aborts is legal, and just structure life differently.” And dissent is like, “Well, people have structured their lives thinking that they have this set of rights, and all of a sudden, we're pulling the rug out from under them. That's actually really important." I don't see that as is the technical legal question. I'd see it as something that's really hard to extricate from values.
Will: Yeah, no, of course. It's technical, it's not technical, and it's values based. There's a legal way to have that conversation about values and a less legal way. And I just mean that all the people who are in the court are steeped in the legal way. Maybe that doesn't matter but--
Dan: Yeah, I don't know if it matters or not. They are equipped to make arguments in that vocabulary. These opinions could have been like two sentences, and nothing would really change. I think that we have to go through this whole exercise. But what the dissent says is like, “Look, what happened here is that there's a change in personnel.” And that's why the court is changing the meaning of the Constitution, it's changing the law.
Okay, that happens sometimes, but I do think that the dissent makes a decent case, and I think a better case than Casey itself did. There's a lot of stuff Casey says about stare decisis. I don't think it's quite persuasive or kind of overwrought. But there is something to this idea that the court should stick to its guns a little bit and not just say, anytime we flip from Democrats to Republicans, now all the kind of democratic rights go away, and Republican rights take effect. That's not great for the idea of living in a society governed by the rule of law.
Will: Yeah, maybe. The thing I find sad about this opinion, is that it's totally appropriate for new Justices to vote the way they think is correct, and it's totally appropriate for the President and the Senate to put people in the court who they want to put on the court. But the combination of those two things gives this appearance of impropriety. The dissent is right that this feels wrong, it doesn't feel rule of law-y. I think it is the right way to do things, but this feels wrong, it looks wrong. And then over time, is that going to degrade the legitimacy of the Supreme Court, even if it's the way things work.
Dan: I don't think it helps. One thing that maybe complicates things is, and I'm going to-- there's actually some things we can blame Justice Ginsburg for. Obviously, this result happened because she didn't retire earlier. There wouldn't have been a fifth vote to overturn Roe had she not tried to stick it out of the court and died and let President Trump replace her with Justice Barrett. But there's also this idea that she really set the precedent about how nominees should respond to questions about their judicial philosophy. And she is often credited with setting the precedent that basically, you give nothing away, no hints, no forecasts about how you might rule.
And so now, we have this kind of charade where you have these hearings. We learn almost nothing from the nominees about what they think about the law even though there's this elaborate signaling going on where the President thinks he knows what the Justice thinks, and the senators do as well. But we're not actually having that kind of conversation out loud. If Justice Kavanaugh had said, like, “I think Roe’s a bad decision and should be overruled,” would he have been confirmed? I don't know. Susan Collins seems to actually have believed. I think maybe she really did believe this, that he was not going to vote to overrule Roe. It sounds it's been reported that her private conversations with him, he certainly didn't promise anything but just gave her a certain amount of confidence that he was a stare decisis guy. He wasn't trying to rock the boat. He was going to stick with it. And I think if he had actually said that, I think that the politics would have looked a lot different. And so, if it's okay for the Justices to change the law and it's okay for the politicians to select Justices on that basis, then maybe we should also expect there to be more candor when that's happening.
Will: Yeah. So, I don't think it's Justice Ginsburg's fault. I think it's the Senate's fault. I think it's our fault. Here's the thing, first of all, I don't think if Brett Kavanaugh had said either answer, he probably would not have been confirmed. If he had said, “I promise Roe is safe," Trump would have pulled his nomination.” And if he said, “I promise I'm going to overrule it,” he would have lost Susan Collins and possibly lost the votes necessary to get him to 50. But the thing is if enough senators in the middle cared about candid answers, they could demand them. But the way you demand is to provide incentives, so you have to provide incentives to be candid, it has to be the case that answering the question candidly does better than not answering.
Somebody who will vote for you, if you tell them what they don't want to hear, but who will not vote for you if you keep their mouth shut, either side, it would only take two or three people on both sides to say like, “We're in the honest answers caucus. And if you give us honest answers, we'll confirm you, and if you don't--” or, they could say, "We’ll never confirm you if you don't answer the questions." That's your only hope of getting our votes is to answer, but nobody's willing to do that. Nobody's willing to vote against a nominee, they otherwise favor because they care about the process.
Dan: Yeah. It diagnoses something that's wrong with our current system, if we have a world where there is no answer a nominee can give about a particular disputed issue like that, that will not result in the being unsatisfactory that suggests that.
Will: I think we want the court to solve our problems.
Dan: It seems the process depends on someone being fooled, right?
Will: Right. At the moment, we rely on the Supreme Court to solve problems we can't solve ourselves. People debate which ones are the ones in this category, but that we get used to the court being like this good, responsible, neutral branch that can solve the pathologies of politics. And at some point, your politics get so pathological that you can't save yourself with the Supreme Court.
Dan: Well, and at some point, your politics get so pathological that it distorts the court, right?
Will: Yeah, that’s part of it.
Dan: This is the thing I've been saying for a few years which is, I think, we have a court that is more partisan than it has been at any point in recent American history, possibly ever in American history where judicial ideology perfectly tracks party of appointment. I think that kind of maybe puts a finer point on this criticism about what does it mean for the rule of law to just-- if we see cases changing, outcomes changing just because there's a personnel change. If it's just a personnel change as such, that isn't necessarily problematic. If it's about partisan control, if it's like okay, now Republicans have more votes, and so the Republican answer wins, I really don't think that perception is good. And I think that perception that that's what's going on, I submit has something to do with the Supreme Court's cratering popularity, which this decision does not appear likely to help in the short term.
The latest opinion polling I saw earlier today said that 59 to 41 people oppose what the court did here, and there may be different ways you can ask the question that produced different answers, but I think it's not wild speculation to say that this decision will reduce the court’s public esteem. But the more that people just see the court as an extension of politics, the less they're going to like it.
Will: Yeah, maybe. Again, some of that's hard to get away from though, because as long as the court's doing important stuff to the political system, then people rightly want to find some way to influence it, and appointments is our way to influence it.
Dan: Yes. But I think in an earlier period of time, there was less polarization within the legal community about how to address a wide range of questions. The legalist sense that there were just lawyers, and they just had a certain kind of approach, and there were some people on the extremes in different directions. But there was a broader consensus among legal community.
Will: Yeah, I would say the legal community was less democratic. There was elite opinion, and a legal community shared elite opinion, and they successfully used a lot of various social and legal devices to keep the hoi polloi from getting their hands on the elite opinion.
Dan: Maybe, I guess I don't necessarily think that's what's changed. I think that elite opinions still shape usually ideology. It's just which elites.
Will: Yeah.
Dan: It's controlled by more part of polarized elites. We don't have the Bernie Sanders working man's justice on the court right now.
Will: [unintelligible 01:07:45] Justice Sotomayor.
Dan: Maybe. Instead, what I would describe it as rather than popular democracy ascendant at the court, instead, we have different power centers. Before you had Justices who were part of a broader legal community, now you have these two competing legal communities that increasingly don't really speak to each other. That strikes me as frightening and troubling, because I think part of the reason that we might want to entrust decisions to judges is precisely because they don't approach things the way politicians do and they feel some obligation to decide things, to make decisions in ways that do not just track partisan outcomes, partisan preferences, and I think we have gotten away from that world. I don't think that that is the world we live in anymore. Sure, have we gotten there in a slightly indirect fashion because we've developed legal theories that turn out to perfectly track party platforms? Yeah. Nonetheless, I don't think this is the best timeline to be living in.
Will: This is probably getting into a bunch of things which we're never going to totally agree. I have a less rosy view of a lot of the history maybe. Going back far enough, I see a lot of-- they're not always based on political party exactly but they're the same kind of when the slavery and anti-slavery justices or when the--
Dan: Yeah, South versus North.
Will: The pro-reconstruction, anti-reconstruction forces, big business versus big regulation. I see a lot of these cleavages being reproduced in the court.
Dan: Yeah, ideological cleavages.
Will: Yeah, that technology of party polarization has gotten better for reasons that are maybe relevant, maybe not. But I will just note, I think it is now in the Republican Party platform, at least in Texas, that Donald Trump won the election in 2020. And I don't think we see the Supreme Court's decisions perfectly tracking that aspect of Republican Party platform, and I suspect we never will, maybe that's cold comfort.
Dan: We don't today, although we continue to see law moving in ways, the court moving in ways further to the right on issues that maybe we're not predictable. I think Justice Thomas did want to hear one of the election challenges. Am I misremembering that?
Will: There are two things. There are some Justices, including Justice Thomas, who wanted to hear the independency legislature doctrine question in Pennsylvania, which would not have even swung Pennsylvania. And then, Justice Thomas and Justice Alito voted to put the Texas original jurisdiction challenge on the docket, and then dismissed it on the merits, as opposed to refusing leave to file. But it's the same echo. Dan, it's been an hour and 20 minutes, we haven't talked about any other cases.
Dan: Should we say that has to wait? Look, we're not going to get to Vega, right?
Will: Yeah.
Dan: It's not going to happen.
Will: We can talk about Bruen if you want.
Dan: Yeah. I'm going to run out of steam out here eventually, but-- [crosstalk]
Will: We can call it and promise another-- Yeah.
Dan: No, let’s do a little Bruen. I'm just saying, for the listeners, I don't have an hour of Bruen in me.
Will: Okay.
Dan: Let's try to figure out the right segue to Bruen. One is it turns out you do not have a constitutional right to terminate a pregnancy, but you do have a constitutional right to terminate adults. That's sort of where we ended up. You can kill people but not fetuses. Is that the bottom line of the Second Amendment and abortion jurisprudence?
Will: That's cute, but no.
Dan: Okay. Not quite fair. What is the right segue then?
Will: I think the right segue is what we see is that the court treats constitutional rights that appear in the Constitution differently than constitutional rights that do not appear in the constitution. So, in Dobbs, made a huge amount of-- [crosstalk]
Dan: Although this is going to bring us back to Dobbs.
Will: Maybe that's unfair.
Dan: That begs the question, because the whole point that the dissent has-- I think a part that's quite interesting, where it says look, we can't just let the-- basically concedes that the framers, the ratifiers in 1868, did not think there was a right to an abortion, but says, “We shouldn't be bound by that. We have to kind of figure these things out as we go. Women weren't allowed to participate in the political process that point." But I think that the best way to understand what the dissent is saying there, “We don't get to just make everything up. But these constitutional rights are written at a fairly high level of generality, and we have to apply them.”
Will: Maybe we should, maybe be we shouldn't. I'm just making the descriptive point that current doctrine does not do what the dissent does, not just an abortion. Current doctrine makes it much harder to find unenumerated rights than enumerated rights.
Dan: Yeah.
Will: I think that is wrong. Actually, I'm writing about the Privileges or Immunities Clause, which I think contains a bunch of rights that are not mentioned by name. But I think the way the current court thinks about it is a little more text focused and a little more worried about traditional [unintelligible 01:13:08] in this area. And for better or worse, the right to keep bear arms is in there by name, and the right to an abortion, if it's in there, it's not by name.
Dan: Fair, okay. So, we have Bruen. An issue in Bruin is New York's law governing licensing for concealed carry of a handgun. And basically, the law says that the licensing authority, in the particular community in which you live, is not required to give you license to certain criteria. And then if you make the right showing, they will give you a license, but it's not like you're automatically entitled to one if you check certain boxes.
Will: Even though make the showing, they can decide that give you the license, right?
Dan: Yeah.
Will: It's like, most states, the license is more applying is more going to the DMV. You show up as a competency test. Maybe certain things can disqualify you. But ultimately, if you do the things that it says on the website, they give you a driver's license. And New York is more like, if you showed up the DMV, and deal with things and pass the driver's test, at the end, they just be like, “Eh, too many cars on the road these days, we don't want anymore. We don't want to make cars. Buy a bike.” Matter of fact, going to the DMV is especially maddening, at least it feels to me that that's what's happening. But that's not supposed to be happening at the DMV. And now it's not supposed to be happening to guns-- [crosstalk]
Dan: My understanding is like you have to go there and be like, “Look, I really need it for self-defense, because my ex-husband is actually trying to kill me,” or something. And they're like, “Okay,” “I'm pretty sure I really need it for self-defense because I live in a high crime neighborhood.” They're like, “Oh, that's not quite good enough. So, no.”
Will: Yeah, I've been told it's something either you are basically an off-duty police officer or security guard or a celebrity, basically, but I don't know if that’s there.
Dan: Like you.
Will: Me?
Dan: Would you be issued a permit?
Will: I don't think I'm the kind of celebrity that counts. I might be a celebrity in Chicago, but in New York, I wouldn't even rate.
Dan: You don't strike me as a big gun guy.
Will: I don't have a gun. I have fired a gun a few times. But I've read the empirical research and concluded that having a gun in the house is on net, bad for safety, especially if you have children around, concluded it was a bad idea to have a gun.
Dan: Yes. Well, some originalists are big gun guys. Randy Barnett is a big gun guy. He sometimes posts pictures of him at the shooting range and showing off his Glock and stuff. So, that's one way to go if you're an originalist legal scholar, but not your way.
Will: Yeah, not my thing. I used to have a pretty good collection of swords, which are gone the way but--
Dan: Samurai swords?
Will: I mean I had a couple samurai swords, but I was more of a European swords guy. So, broadsword, rapier, dagger, that kind of thing.
Dan: And you sold those when you had kids or what?
Will: I think I even sold them before that at some point. They ended up in a closet at my parents’ house, and then my mom sold the house and I decided it wasn't worth it.
Dan: Was this connected to the like D&D stuff or just totally separate?
Will: Yeah, it's sort of related interests. Yeah.
Dan: I've been catching up on Stranger Things while I'm here at my in-laws. You watch that show?
Will: No.
Dan: You'd like it. It's a horror sci-fi series set among kids who play D&D in the 80s.
Will: One decade off, and that could be my life.
Dan: Yeah.
Will: Anyway, no guns, no swords at this point. We have plastic lightsabers in my house now. That's about all that seems safe now.
Dan: We've got some of those. Okay. So, that's the regime. Sorry, I derailed you a little bit. The court has previously said in Heller, Second Amendment protects an individual right to keep and bear arms. Court said in McDonald, that right is incorporated. So, it binds state governments as well as the federal government. But the court had not really said much more than that. And so, we sort of knew that basically flat bans on individual gun ownership were unconstitutional, but there's a whole host of other questions about what about these other laws? What kind of licensing regimes? What kind of restrictions are constitutional? The court had not waded into that for quite some time, and there was a lot of lower court case law but we'd really been waiting for the court to tell us the answer to some of these questions. And this is a really significant case, because the court is stepping in and saying, “Here's what Second Amendment jurisprudence should look like. Here's how courts should approach these cases.” And the way the court does that, I think, is maybe surprising. It's certainly a big deal.
Will: Yeah. As I see it, there are really two big questions in this case. The question presented was kind of obvious what's going to happen, and it's important, but it's not the most important thing. And then the other is the methodological question. So, the question presented, the way the court thinks of it is basically, “Do you have a right to carry a gun outside the home most of the time, or upon a showing of something?” Fundamentally, you should be able to carry a gun around and this seems to find a way to help you do it if you're a law-abiding citizen. And the answer yes. And then that leads to the conclusion that these discretionary regimes for most people don't let them carry a gun outside the home. That's the problem.
Everybody thought that was going to happen. The court had this case at its docket several years ago. And then, the state and legislature managed to moot it out and avoid it, but everybody expected that was going to happen. What I think people did not necessarily expect was that then, on the way to that path, Justice Thomas announces the new test for how the Second Amendment works, and maybe how all of the Bill of Rights works, unilaterally abrogating, virtually every circuit decision to have dealt with Second Amendments that's Heller, McDonald, because there's a test that almost all of us that the court targets and explicitly declares is wrong. So, that's going to be a huge amount of new litigation, and obviously, a slightly newly constituted bench for every gun restriction.
Dan: Yeah. Can you walk us through how the lower courts seem to understand the test to work, and then the way it's going to work in the Supreme Court?
Will: Yeah. The lower courts basically said it's like a two-step test. You first do some kind of a historical inquiry to see is this within the historical tradition of the right to keep and bear arms. And then, you do some kind of means and scrutiny, and the lower courts disagreed about strict scrutiny versus intermediate scrutiny or other kinds of scrutiny. We see this in a lot of other digital rights cases, I assume, you remember, some version of what's the government's interest? How related is this restriction to the interest? That was the widespread lower court approach.
Dan: Which is the way we do other constitutional rights for the most part.
Will: Well, maybe. Then, Justice Thomas for the majority says, “Despite the popularity of this two-step approach, it is one step too many.” And basically says, “You just do the historical approach.” Now, the historical approach turns out to have several kinds of non-historical aspects baked into it. You don't have to literally look for gun restriction that was known to history. You can draw analogies. You can do some other things. But fundamentally, you don't get to a second step where you say, “Yes, this is contrary to the historical right. But it's okay, because it's a good idea.” And you never get to that second step.
Interestingly, Justice Thomas goes on to say, again, for the court-- goes on to claim this is how we do other rights too. So, he claims in the First Amendment case, we don't do this anymore. We take basically a historical, categorical approach citing some of the one of the courts more recent First Amendment cases that had really changed the doctrine a lot to adopt that kind of historic approach. He cites the Confrontation Clause, cites the Establishment Clause. So, makes of general declaration of historically bounded rules over balancing. Maybe that's dicta, so it doesn't really matter, but I think it was quite striking.
Dan: He cites Stevens for the First Amendment point.
Will: Yeah.
Dan: The thing that's funny about that is Stevens, that’s a case from back when I clerked, that's basically constitutionality of a law that was purported to criminalize these animal cruelty videos. And the court said, “Look, basically, there's set categories of things that historically weren't protected. And if it doesn't fit into one of those lists of closed categories, then you can't prohibit it.” Right?
Will: Yeah.
Dan: But then, that same term, in an opinion, also by Chief Justice Roberts, the court then applied some kind of level of heightened scrutiny to a different law, basically, the material support law that basically criminalized doing all sorts of stuff to help organizations that were on the list of designated terrorist organizations, stuff that looked like speech, like filing an amicus brief, things like that. And the court wasn't super clear on what level of scrutiny was applying, possibly strict scrutiny, and said, “But there's a really strong government interest here in preventing terrorism, and so that's okay.” So, the court still does that sometimes.
Will: Yeah. I think this is a wildly optimistic overclaiming by Justice Thomas. I do think, as you read this more nuanced explanation of what the historical approach is supposed to look like, I take it that kind of scrutiny is fine so long as what it's trying to do is pick up on the historical test. If the idea, and nobody's spelled this out in Humanitarian Law Project v. Holder, but if the idea is something like, “Oh, well, there's always been an understood exception to certain kinds of advocacy when it gets too close to sedition and treason." And we're using the strict scrutiny framework to ask, “Is this really close to sedition and treason because it similarly burdens the government's interest and national security, etc.” If that's how you'd have to rerun it under this version, and it may well have gotten to the same place, I'm not sure. But, yeah, it's right, the death of strict scrutiny seems to be a little bit premature.
Dan: Yeah.
Will: In this opinion.
Dan: But it does suggest that isn't the way we're going to think about Second Amendment cases. It got a little complicated for me. Can you just walk me through the more specifics of the historical test? So, first of all, we look for historical prohibition that looked like the one at issue in the current case, is that step one? I know that we get rid of the second step, but is this step 1A?
Will: Yeah. We look to the relevance of-- we look to the First Amendment, you'd look to the relevant historical category of regulation that we know is okay. And then, you ask whether this is sufficiently analogous to that, that requires some value judgments about sort of what it is that that was behind the historical exception or what was the purpose of it, how did it work? For instance, there's some discussion in the case in another scholarship about sensitive places. This is also mentioned in Heller, with some understanding. You couldn't take your pistol into the jury room or whatever, at the founding, because it was a sensitive place. And so, some kind of equivalent rule is still true today. And so there will be litigation, which the court mostly doesn't resolve about, “Well, what's an analogously sensitive place?”
Dan: I like how they were very quick to make clear, they're like the Supreme Court is still allowed to bar people from having guns at the court. We're still safe here behind in our marble palace, surrounded by our unscalable fence. Just you folks who are not.
Will: Well, I think that they're not going to mess with schools, probably even campuses, etc. They do say you can't declare the entire island of Manhattan a sensitive place on the grounds that it's crowded, and guns are scary. I think the actual case that at least the Second Circuit left to confront is they'll surely ban carrying guns on public transportation in New York, and then that will have a huge impact on the ability to bear arms in Manhattan. And then, I suspect the courts love to wrestle with that, whether that's sufficiently analogous or not. But that's the kind of inquiry that the courts are calling for.
Dan: Yeah. Okay. And here, there is a lot of history, I found this decision. The methodological question and stuff is interesting. The history gets, I found, quite tedious. And there's a lot of back and forth. We start with some really stuff hundreds of years before. We go all the way through into the 20th century. The court tells us a bunch of that stuff shouldn't be relevant, some of it the court says is irrelevant. It seems the stuff that the court thinks isn't relevant, it's the stuff that would support the dissent in saying this isn't protected. The stuff that is relevant, they say, supports their outcome, but it's a lot. And it struck me as some of the things that I liked the least about originalism, which is you end up asking judges to do this kind of law office history that I think that lawyers are not necessarily that well equipped to do. This is something that a point the dissent makes, is that, “Look, the Supreme Court has a lot of staff, has really good library, and maybe we can write these 100-page opinions that canvas the millennia of history going back to like Magna Carta, but what is some random district court judge supposed to do?” That's a good question.
Will: So, it isn't a question, I happen to particularly like it because the majority gives us an answer, a law review article. Actually, not in a law review article, a history journal article published in a peer-reviewed history journal by me and Steve Sachs, basically defending the enterprise of law office history, on the grounds that it's law rather than history. And so, the majority jumps to footnote 6, to say, "The job of judges is not to resolve historical questions in the abstract. It is to resolve legal questions presented in particular cases or controversies. And that legal inquiry is a refined subset of the broader historical inquiry. It relies on various evidentiary principles and default rules to resolve uncertainties," citing Baude and Sachs' Originalism and the Law of the Past. So, I guess I think that's right.
Dan: [chuckles] I would hope so.
Will: [chuckles] Well, I will say, if you'd asked me to list my articles in order of likelihood to be cited in the Supreme Court opinion, I would have put Originalism and the Law of the Past towards the bottom. This is making a methodological point to historians as part of a broader conversation about how historians should think about originalism. So, I'm pleased the court found it. It's especially funny because the first time I've ever been cited in a majority opinion by the court. Otherwise, I've always been dissent or concurrence. But I do think that this is where the rules of evidence and the rules of all sorts of other-- I mean, the rules of party presentation, all those things do a lot of work. And this happens to be a good example, but I think it's a place where there's been a huge amount of scholarship with these questions. So, the court is not in its opinion really itself being the first ones to figure out the truth about the Statute of Northampton, or like the Massachusetts statutory laws. Like it has a set of competing scholarly accounts on both sides, and I would think this is more persuasive, just district courts do with expert witnesses all the time.
Dan: Yeah. Although they're resolving factual claims that are being presented through testimony and so forth. Our judges, yes, these are in some sense, they're questions involving law, but they're still they are also just factual questions, like what was actually going on on the ground in 1300s.
Will: Yeah. This was part of what the opinion is doing. Maybe it seems unpersuasive, is it's trying to explain that probably what happened on the ground in the 1300s actually isn't relevant because the Second Amendment is written in the 1700s. So, what matters is what people thought in the 1700s about whatever may or may not have been going on the ground of the 1500s. And weirdly, that's actually an easier question to answer, because we are more used to the set of legal sources that we know [crosstalk] framing.
Dan: Yeah. Although the court is engaging with some of those questions about like, “What did this law mean?” “Oh, it just meant that you couldn't like wear armor,” stuff like that.
Will: Right. It engages with them, but I think it's more clear in a way that maybe I wished opposite had been. Sometimes it's engaging those questions, even though they aren't that important or that in a way, ultimately, it comes down to-- To oversimplify, in England, there are various times that they disarmed people who didn't respect the right to keep and bear arms. And the question is were the framers for that or against it? If they think that was part of the Second Amendment tradition they were enshrining? Or was that part of the reason their right in the Second Amendment is to avoid that? So, we need their general valence on some of those instances. The same way we've gotten used to doing this in the First Amendment context, like, how did they feel about the Zenger trial or whatever. And this is kind of a similar question.
I think there are going to be a lot of hard questions of this history. I think that happens this case is not one of the harder questions. But I do think that those appealers are going to have their work cut out for them.
Dan: Yeah. There's going to be a lot of follow-on stuff about what kinds of weapons. The court said in Heller that Second Amendment does not just apply to muskets and stuff that applies to weapons that are in common use, but what exactly does that mean? Does that mean it protects all assault rifles? Could there be regulation of assault rifles? Could there be prohibitions on bump stocks, large ammunition containers, and all sorts of things?
Will: Sure. I think the body armor question is more important to people. There are currently lots of restrictions on your ability to use armor to keep the police from killing you, and that may be hard to justify on some of the historical basis. The other big set of cases are who can have a gun questions? Everybody assumes that felon disenfranchisement is okay. Although as to nonviolent felons, that's not totally obvious. But then also misdemeanors, aliens, people who are not felons, but are currently out on bail, people between the ages of 18 to 21. There's a whole set of questions about that, that are going to have, I think, also complicated sort of historical analogy questions.
Dan: Yeah. I guess, this approach though seems to be likely to push the lower courts more in the direction of invalidating restrictions, right?
Will: Yeah. Certainly, compared to where they were, which is that almost they've generally were not validating any restrictions. Yeah, I think there are going to be some restrictions that don’t survive.
Dan: Yeah. And you have dissent by Justice Breyer who leads off by talking about some of the facts on the ground about the problem of mass shootings, citing examples of a bunch of the recent mass shootings, which I think is relevant. It doesn't answer the question, but that it's at least something that--
Will: Why is that relevant?
Dan: Why is it relevant? Because I think that these cases, as I've said, there's a significant range of discretionary choices in which the law maybe suggests a direction but doesn't clearly dictate the answer. And certainly, I don't think the Constitution clearly answers the question of what analytical framework court should take in figuring out how to assess alleged violations to that right. Like, does it clearly say you can't do strict scrutiny? I don't know. It seems like a legitimate-- thinking to Richard Fallon, legitimate judicial attempt to implement the fairly simple rules that don't give you a lot of content from the Constitution, implement them into judicially workable standards. Should that be the rule? Or, should we just have these more ironclad commands. I mean, there's just a lot of discretionary choices. And I do think that thinking about-- is one of these is going to cause a lot more people to die? I don't know, maybe that should be in the background.
Will: Right. I'm really asking the Justice Alito’s question, do you think that any of the gun control rules in question, have a big effect on the number of people who die? Do you think that a lot more people are going to die in New York next year rather than this year? I don’t know.
Dan: Do I think that if guns become suddenly more widely available in New York, more people are going to die? Yes, I do. Some of the reasons that you've already alluded to, is that even just lawful gun ownership in your own home increases your risk of death? Because it increases the risk of suicide and increases the risk of accidental death.
Will: Right. Although, this is part of the question is, Heller, McDonald already established the right to have the gun in your home. So, the question is, is this decision going to cause a lot of people who currently don't have guns in their home at all, to have guns in their home?
Dan: So, it's not just about the home though. I think that the point is, which I think I certainly believe, and I'm sure that some of the gun people will come out and claim I'm wrong, but is that the increasing the number of guns in circulation, increasing the availability, and increasing the number of guns that are held in public spaces is going to increase death.
Will: Right. I'm asking more the question, do we think the current laws we have really have that much effect on gun circulation? Do we enforce them in a way that-- do we believe in deterrence? Do we think that having laws against having guns causes people not to have guns? Do we think that we currently have rational firearms laws?
Dan: I don't accept the argument that laws prohibiting gun ownership in some circumstances have no effect in the world. There's a bunch of other countries that have stricter laws about guns, and they have fewer guns, and they have fewer gun deaths. It cannot be the case that law has no role here.
Will: It could be the case. It could be the case that our laws are so poorly enforced and so inconsistently enforced, and our amount of criminal behavior and violent behavior is caused by our lack of a social safety net, and our lead in the water and our history of systemic racism, that the law is just doing very little work in this area. I don't know that's true.
Dan: It may be but if the law was not making any difference in who possessed guns, then one might think the stakes of why would people care as much about getting these laws have returned? Well, because I think--
Will: Because we're all in thrall to symbolic politics.
Dan: Maybe. Or maybe that there actually are stakes that this is going to cause some people who wouldn't have possessed guns otherwise to possess them. I think that is an easier claim for me to defend than the claim that this will have no effect on the world at all. And if it has that effect, I think it's also quite likely, I can't prove it in this podcast, that it will increase death.
Will: Yeah. My impression--
Dan: [crosstalk] -sometimes, constitutional rights have caused but I think that-- [crosstalk]
Will: My impression is that the effect on suicides of gun laws is a lot stronger than the effects on homicides, and I think majority of gun deaths are suicides, and so probably Justice Breyer also relies on those statistics, and those are probably more likely to be where the needle gets moved. But I'm also interested in this because there's a whole lot of social scientists who try to figure out, what gun laws work and what effects they have, and that kind of thing. And so, if the court's not going to play amateur historian, it seems like its alternative is to play amateur sociologist. And I don't know, which one the court's better or worse at, to be honest.
Dan: Well, there's a third option, which is the court should be cautious and maybe be somewhat more deferential to legislatures and doing the kind of sociologist work.
Will: Maybe, although I query whether our legislators are any better at playing sociologist.
Dan: Yeah. We got this lengthy tie-in to how we should return these issues to their people's representatives in Dobbs. And then, the court really doesn't want to do that with respect to the Second Amendment.
Will: But isn't there a difference between a moral question and an empirical question? I take it nobody disagrees that dying is bad, that the people being killed by guns are people, and then we have this question about the history of the empirics. Whereas in Dobbs, it's more like fundamental, philosophical questions.
Dan: Maybe. I think there's also a lot of empirical questions there. There's huge debates about, do we need these pretty clear restrictions on hospital-admitting privileges to protect women, are they just pretext? Things like that. Empirical questions about like, do you need to prohibit abortion because women regret it or not? There's all sorts of empirical questions baked in. So, I don't think it's just a moral question. I don't know typically, even with respect to those empirical questions, we tend to think that legislatures are supposed to be better at those. Even if whatever we think about them in practice, those are the kinds of things that legislatures and courts are supposed to be doing, figuring out what policies are good policies and effective or not.
Will: Maybe. Although at least with the enumerated rights, traditionally, we think that there's got to be some backstop where the court is checking whatever it is. If we thought the First Amendment could be limited in cases where lots of people are going to die, because you started a fire in a crowded theater. I think we would expect the court to figure out whether or not are there in fact, a lot of burning theaters? What, in fact, happens to somebody starts a fire in--? We wouldn't expect the court to just take those assertions at face value.
Dan: Yes, but we might say, sometimes the court should be more cautious, be less cautious. And in a situation where the stakes are as high as they are, and where the country is experiencing the volume of gun violence that we're experiencing, including at this very present moment in time, I think I wouldn't mind the court to at least acknowledge what's going on. Justice Alito has this annoyed concurrence where he criticizes the dissent for emphasizing those facts, but I don't know. I think it's totally fine for the dissent to say, “Look, the thing that you're doing, we think it's legally wrong. And by the way, here's the really important policy question at stake and the real harm that this decision that we think is wrong is going to create in the world.” [crosstalk]
Will: I read Justice Alito’s-- I was asking the same kind of question I was asking, which is how confident are we that we can draw a connection between the things the dissent things are bad and the actual legal questions. If during the Red Scare, the court had spent more time dwelling on why Stalin was bad or that explaining why we should punish communists or not let them be school teachers or whatever, I would have found that beside the point. It's true that Stalin is really, really bad. And you can draw a line. It's possible that if we don't lock up communists, it's possible that we'll get more Stalins. But I still don't know that would have been the most helpful framing, and I worry that-- [crosstalk]
Dan: That's a little bit of a different-- that's more of a stretch than we're saying lots of people are using guns to kill people right now, and then this law is like, “Can more people have guns or not?” It's a little bit of a closer line between, is Stalin bad and should-- [crosstalk]
Will: Yeah. A little although doesn't-- what about the Buffalo Point? Justice Breyer's list of mass shootings, one of which takes place in the state with the law that he says is necessary. Now, maybe the point is just there'll be more mass shootings in New York without it.
Dan: Yeah, I mean, how do we-- crosstalk]
Will: You don't eyeball the anecdotes and think like, “Oh, [crosstalk] right.”
Dan: The fact that a law is not preventing all of the bad things that it seeks to prohibit, does not mean it's an effective law.
Will: Right. But when you're the one listing the parade of horribles and you put that in your list, it suggests that you weren't engaging in a great amount of attention to your examples either.
Dan: Maybe or maybe he just thinks what I thought. I mean presumably, he saw a draft of that response, the majority, and he could have taken it out if he wanted to and choose not to.
Will: Well, that’s because I think he's making the mood affiliation point more than the empirical point. We're all terrified by guns and gun crime in this country, and I am too, and it feels like this is hurting rather than helping, even if it probably doesn't make a difference.
Dan: I don't believe that claim probably doesn't make a difference. It probably does-- [crosstalk]
Will: Even if it doesn't make a difference, it still feels bad, our feelings are driving-- [crosstalk]
Dan: I'm not going to spot you that it doesn't make a difference.
Will: Okay. Whether it makes a difference or not, it's an empirical claim that I think we have different priors on and the opinions provide very little evidence about either way. The majority doesn't care about it. Justice Breyer doesn't do a lot of work on it.
Dan: Yes, although I think the burden is on you to prove that a law that makes guns more widely available has zero real world impact. Obviously, that changes something in the world.
Will: We have a law that makes it harder to take your guns from home out in public. I do think there'll be a nonzero number of people, at least two, list the petitioners, probably more than two, probably, who will now be able to carry their guns more places than they were before. I don’t think that's right. But I still suspect that when, I assume in 10 years, there'll be a bunch of econometric studies doing natural experiments on differences on whether or not violence increased more in the six states that are affected by this decision than the 43 states that weren't. And my guess is that it's not going to be anything big enough for them to pick up. Maybe that's wrong. Maybe it'll be big enough that we pick it up and we'll learn a lot about public safety, and maybe that'll cause this public decision to be overturned to 10 years by the 41-Justice Court or whatever. But I don't have a lot of confidence in that.
Dan: Yeah. And whether it's able to be picked up by empiricists using their somewhat limited ability to engage in causal inference, doesn't necessarily mean it doesn't have an impact. It just could mean that-- [crosstalk]
Will: Right. I see a world where getting from law to actually making things happen is often very hard. Sometimes for better, sometimes for worse.
Dan: Yeah. Maybe this has less of an effect. It certainly has less of an immediate effect than Dobbs. I feel we should have lingered on that a little bit more about the really-- because we got tangled up with metaphysical timing question about mandates, but Bruen is going to change the law in six states. Some people, it was harder to get a license now, it's going to be easier to get a license. Dobbs is going to change the law in a lot of states, and it's going to greenlight other kinds of laws that some states haven't yet passed. It's super-- I think we're going to end up in a situation where abortion is illegal very quickly, and half the country, more than half of the country.
Will: By land area or by population?
Dan: I meant more like number of states. I think 26 states had signed on to a brief saying overturn Roe.
Will: Yeah. But that's just that they have Republican attorney generals.
Dan: Yeah.
Will: They don’t all have-- [crosstalk]
Dan: That sort of supermajority that they need.
Will: But no, I think it's a lot. I mean, their abortion clinics shutting down, and I think they already shut down in your home state of Missouri. If you look at the map, it looks like Illinois will be the only--
Dan: Yeah. I think the only one in Missouri is one that I drive by, on my way to work every day. I presume by the time I get home, it will surely still be running and just providing other services, but it will no longer be an abortion clinic.
Will: Yeah. It's huge.
Dan: Yeah, it's going to really affect a lot of people's lives in very profound ways. And obviously, people have different moral priors about this, but certainly there's going to be a lot of women whose lives are going to be profoundly changed for the worse as a result. I think that's a cost. I think it's just one that shouldn't be ignored and needs to be acknowledged. If you remember the majority, you either don't care about that, you don't believe it, or you just think it's irrelevant. Those are all different paths you can go down.
Will: Right. Also, of course, we haven't talked much about the fetal personhood argument, because it's the policy version, but there are also pro-life people who would say it's true, but also there are a lot of people who are going to get to live, who wouldn't have lived otherwise. It's not the way to think about it, but--
Dan: Yeah. This does, by the way, one other thing, maybe there's more to say about Bruen, but I think we should just wrap up this conversation on Dobbs, and then maybe we'll get to Vega some other day, which I was going to say, this ends the whole charade about the Texas Heartbeat Law, SB8 with the elaborate jury-rigged system in which private citizens could enforce the law, but there's no one to sue. I think I've said this all along that the whole thing I thought was actually supposed to be such a genius thing. I just thought it was dumb, because if the court really wanted uphold Roe, it would have found a way to strike down that law. And if the court didn't, it wouldn't, and the court didn't strike that law down and it didn't uphold Roe. It just really didn't matter. I don't think that there was a realistic universe in which there were a period of years in which the court was like, “No, we're going to really stick with Roe, but also we're utterly powerless to do anything about this Texas law.”
Will: Yeah. But it made a difference on the ground in the meantime. There are a lot of women whose lives were affected by the [crosstalk] six months.
Dan: Few months. Yeah. Figuring out a way to ban abortion for a few months before the court finishes writing the opinion in Dobbs, I didn't really think that was the goal of this allegedly genius strategy. I thought that the point was-
Will: I think that was the goal.
Dan: -like, “Oh, we found some loophole.” Well, I don't know. I mean, was the goal really just to have the timing work out perfectly such that it would give you this extra cushion of time while Dobbs is already in the works? I thought that the goal was, “Well, maybe there'll be a few years away from doing this.”
Will: It's true. Maybe the victory in Dobbs happened faster than expected. But I think what I read was that the previous experience in Texas and other states was that every abortion law immediately gets enjoined and never goes into effect. And the goal is to figure out a way to write a law that wouldn't get immediately enjoined. You could actually have an effect while you're fighting that in court.
Dan: I just think it would have gotten immediately enjoined in the end with a court that actually believed in adhering to Roe.
Will: Well, we'll never know.
Dan: If this was the court 10 years ago, it would have gotten immediately joined, and that would have been the end of it.
Will: I’ll say we'll never know. If we imagine a world where Justice Kavanaugh didn't want to overrule Roe, but instead wanted to go with the Chief’s opinion in Dobbs, do we imagine that also means he would have voted differently in Whole Woman's Health? That's not frivolous. That's possible. But it's also possible he would have.
Dan: Well, I guess it depends on what we really think. If we think that is there some set of Justices who didn't want to take the political heat for overruling Roe, but wanted to accomplish that result in practice, would they have done that? Yeah, probably. Certainly, I can't believe Justice Kennedy would have let that law stand. He would have seen it for what it was, which is a cynical attempt to find a way around court's constitutional guarantees that were laid out by the Supreme Court, and he would have said, “No way.”
Will: Justice Kennedy never let legal technicalities get in his way if he didn't want to. That's true.
Dan: Yeah, I don't think it's just a legal technicality though. I think that there's legal technicalities, and then there's absurd attempts to develop loopholes. I think that law, it's a mix of the technicalities and common sense. I think any good judge has to have some combination of those two things. And to the extent that the claim of the conservative legal movement is that it should be 100% of the technicalities, and none of the common sense, I think that's both descriptively wrong and dangerous. Again, as I've said, there's just no way a law that targeted some other constitutional right would have been tolerated. There's just no way. There's no way. And it was tolerated in this case, because the court was already prepared to walk away from Roe, which it did.
Will: I think we had this fight about how to deal with the politics of SB8 before, and I'm just going to rest on my prior answers.
Dan: Yeah. I'm going to rest on you being wrong. Okay, so [crosstalk] stuff--
Will: [crosstalk] --cases strikes again.
Dan: Yeah. I was thinking, it's now like 11:21 here, so I'm probably a little punchy. But it is an unfortunate coincidence that history ends up codifying the Republican Party platform. That’s too bad, but maybe it won't always be true. But we'll have to see.
Will: Not all the Republican party platform, Dan.
Dan: Well, what not?
Will: A big lie.
Dan: Yeah. But then, you've got all this independent state legislators’ stuff, which is not all the way there but I think it's like a quarter of the way there.
Will: I think this is the mood affiliation problem again. When the court decides any state legislature doctrine, I'm sure this is what will happen. People's correct emotional hatred towards the big lie will cause them to assume the opinion as part of that as well. When it's really kind of-- [crosstalk]
Dan: Obviously, that's not the case that we have to talk about today. But I do think that the big lie is, I think, cannot be wholly separated from the Republican assault on voting rights and the Republican attempt to sow doubt on the integrity of elections over the last couple decades, to a degree that is clearly not justified empirically. The second thing, the larger strategy made the big lie more plausible. I don't think they can be disentangled. And I think the independent state legislature doctrine is actually part of that larger program. But I'm sure they'll give us that case, and I'm sure they'll do stuff that I don't like, and then we'll talk about it, which is basically what this show is.
Will: [chuckles]
Dan: They do stuff I don't love, and like I say, it's bad. And you're like, “Well, actually, they're super, super principled. And everybody's great."
Will: Well, Court, if you're listening, try to do something Dan likes at some point so we can break up the rhythm of our show.
Dan: Yeah. Not super likely other than in little, trivial [unintelligible [01:56:01] things. Okay, it's been a long one. Why don't you close this out?
Will: All right. Thanks very much for listening. Please remember to rate and review the podcast on iTunes or wherever you listen to it. We've gotten some reviews recently, which I really appreciate. Please write us, call in. If write us with some praise or good feedback, we might repeat on the show. If you write us with nasty feedback or criticize us, we'll probably just describe it and then explain why we don't care about your views after all. But we really appreciate it either way. And thanks to the Constitutional Law Institute for sponsoring all our endeavors.
Dan: And if we don't record another episode for a long time, it will be because I got stuck in this car in outside my in-laws' house.
Will: [chuckles] I hope that doesn't happen, Dan.
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