Can an Oral Advocate Learn Anything from Last Week’s Supreme Court Hearing on Abortion?

             In a New York Times column, Linda Greenhouse, who covered the Supreme Court for that venerable newspaper for many years, took off her gloves to call out some of the justices for the questions they posed during oral argument in Dobbs v. Jackson Women’s Health Org.[1] The justices’ queries suggested not only that Mississippi’s ban on abortion after 15 weeks the challenge but could, as many predicted, also overturn Roe v. Wade[2] rather than simply further whittle it down. She called many of the questions as “gaslighting” because they struck her as disingenuous for what struck her as pretextually innocent varnish that belied the justices’ hardened positions.

            Two of the exchanges Greenhouse discussed have implications for oral advocacy that bear further examination. Greenhouse gave her “gaslighting prize” to Justice Kavanaugh for asking what would be wrong if the Court took a position of neutrality on abortion, so that there could be “different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”

            Solicitor General Elizabeth Prelogar answered by noting fundamental rights are not left up to state legislatures to decide whether to honor them or not.” The question and answer suggest that the two participants in that conversation were operating from very different assumptions. Prelogar’s answer is grounded in a belief that Roe declared a fundamental constitutional right that the courts must uphold, while Justice Kavanaugh’s question presupposes that there is no basis for Prelogar’s position – or the foundations upon which Roe was built.

            The Supreme Court’s new argument format meant that that answer had to do because it was not Justice Barrett’s turn to ask questions and she moved the conversation back to another topic. Still, what’s an advocate to do when a judge asks a question that telegraphs rejection of the fundamental premise of your argument? In some arguments, a Plan B might be possible, arguing a different and potentially more acceptable alternative legal theory. A Plan B, however, did not seem possible in Dobbs.

            Another alternative is to abandon hope that the questioner could be the linchpin to victory and concentrate on others on the panel who might vote your way. However, with Justice Kavanaugh occupying the Court’s center and often considered the weather vane for a majority view, that hope seems remote. A further tactic is to go down with guns blazing, understanding that you are unlikely to prevail, but making a full-throated defense of the foundation for your argument that the judge has put into doubt. The danger of such an approach, regardless of how self-satisfying it might be, is that it often leads to a comprehensive defeat. In the end, however, questions of that sort, particularly when similar skepticism is expressed by others, likely foretell defeat.

            Interestingly, Greenhouse made the connection between Justice Kavanaugh’s questions in Dobbs about adopting a position of neutrality so States could regulate abortion as the wish to the very different attitude he and other justices seemed to display in the recent argument in New York State Rifle & Pistol Ass’n, Inc. v. Bruen.[3] There, New York advocated, on the basis of history and tradition, that states and localities had long adopted quite different approaches to gun regulations and licensing that should be allowed to continue without offending the Second Amendment. The challengers to the state licensing law argued that the Constitution did not allow as much leeway as New York had taken in the 1916 law under review.

Linkage between guns and abortion may have first been expressed by Judge J. Harvey Wilkinson III of the Fourth Circuit in a 2009 Virginia Law Review article.[4] He found that both foundational decisions, Roe and District of Columbia v. Heller, criticized and celebrated differently based on ideological preferences, suffered from the same flaws: a failure to utilize textualism to achieve a result, disregard for the complexities that the decision would engender so that much litigation would be spawned, indifference to legislative judgments, and a lack of concern for federalism. Key to his approach is a rejection of the constitutional foundations of both decisions.

In the end, the answer in both cases, Dobbs and Bruen, turn on the justices’ acceptance or rejection of the underlying rights at issue – and even the most brilliant oral argument is unlikely to transform ingrained perspectives.

A second exchange also teaches a fundamental lesson on oral argument. It exemplifies a rule that judges can do what they want, but advocates are more limited. Chief Justice Roberts asked whether viability was briefed and argued in Roe as a line of demarcation, referring to a statement in Justice Blackmun’s papers about a draft of the Roe opinion that he was struggling to produce at the time. In it, he referred to the trimester approach the opinion took as arbitrary and a form of dicta but said that so would tying the right to quickening or viability.

Chief Justice Roberts referred to the Blackmun papers as an “unfortunate source,” but nonetheless posed the question. As Greenhouse points out, the paper the chief justice cited was superseded after conversations with Justices Marshall and Powell. Justice Blackmun’s new memo after called viability justified on “logical and biological” grounds that few could argue with.

            The oral advocacy question is whether counsel, in a case where a judge did not raise the question, could fruitfully raise private papers – or remarks from the bench, for that matter – to make that type of point the chief justice did, when it is not reflected in the opinion that was issued. It is one thing to recall a point made by one of the judges during that oral argument. However, it would seem inappropriate for an advocate to use an “unfortunate source” the way the chief justice did.

 

[1] 19-1392.

[2] 410 U.S. 113 (1973).

[3] No. 20-843.

[4] Judge J. Harvey Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009).