The Dual-Track Independent State Legislature Doctrine – Jack Foley

Posted by on May 24, 2023 in Per Curiam

The Dual-Track Independent State Legislature Doctrine – Jack Foley
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The Dual-Track Independent State Legislature Doctrine

Jack Foley*

What’s in a word—especially when that word is of Constitutional import? In the pending case of Moore v. Harper,[1] the word at issue is “legislature,” and the question is how broadly it can be defined. Moore represents the Supreme Court’s attempt to determine the Constitutional merit of the so-called “independent state legislature doctrine” (ISLD),[2] which posits, in its broadest form, that state legislatures have plenary and exclusive power to set the rules for federal elections.[3] Advocates of ISLD cite two Constitutional sources for this claim: the Elections Clause, at Art. I, § 4, Cl. 1, which governs state legislatures’ power to regulate Congressional elections; and the Presidential Electors Clause, at Art. II, § 1, Cl. 2, which governs legislatures’ power to regulate the choosing of presidential electors. This article will refer to the former as “Art. I ISLD” and the latter as “Art. II ISLD.”

However, recent scholarship has sometimes been confused as to the relationship between the caselaw of the Elections Clause and that of the Presidential Electors Clause. Opponents of ISLD rely more heavily on the Elections Clause cases, which are more supportive of their position, and tend to criticize latter-day Presidential Electors Clause cases for insufficiently addressing the Elections Clause cases.[4] Conversely, advocates of ISLD tend to rely more heavily on the Presidential Electors Clause caselaw, and seek to minimize the impact of Elections Clause caselaw by characterizing it as downstream of the Presidential Electors cases. [5] Some commentators take a totally separate approach and imply that arguments about one clause have no bearing on the other: for instance, the Moore respondents dismiss petitioners’ arguments regarding the Presidential Electors Clause by suggesting that those arguments are inapplicable to the Elections Clause.[6]

This article will demonstrate that, contrary to some current understandings, Art. I and Art. II ISLD have effectively developed into two wholly different strands of law—a dual-track independent state legislature doctrine. Despite the textual, historical, and structural similarities between the Elections Clause and the Presidential Electors Clause, the most significant caselaw surrounding each has developed almost entirely independently of each other, and the doctrine for each is profoundly out-of-conversation with the other. Indeed, of the most significant ISLD cases, not one Art. I ISLD majority opinion cites a single Art. II ISLD case for its position on the scope of the term “legislature;” nor vice versa.

The article will begin by listing and explicating the seminal Art. I ISLD cases. The article will discuss how these cases exist in conversation with each other, but not with the Art. II ISLD cases. The article will proceed by doing the same for the most notable Art. II ISLD cases. Finally, the article will conclude by briefly analyzing the history, structure, and text of both the Elections Clause and the Presidential Electors Clause, and will argue that due to deep similarities between the two, the Court should seek to explicitly harmonize the caselaw in the future in a manner more consistent with Art. II ISLD than with Art. I ISLD.

Article I ISLD

None of the leading Art. I ISLD cases which deal with the Elections Clause have substantively engaged with analogous Art. II ISLD cases that address the Presidential Electors Clause. This has led to two distinct lines of cases.

The Elections Clause concerns state legislatures’ power to regulate the election of members of Congress. Located at Art. 1, § 4, Cl. 1, it reads as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. (emphasis added)

There are four seminal cases which govern the Supreme Court’s interpretation of the Elections Clause:[7] Davis v. Hildebrant,[8] Hawke v. Smith,[9] Smiley v. Holm,[10] and most recently, Arizona State Legislature v. Arizona Independent Redistricting Commission.[11] While each of these cases converse with at least one of the other, in not one does the majority opinion reference any of the Art. II ISLD cases for its interpretation of analogous language in Art. II concerning the scope of the word “legislature.”

At issue in Davis was an amendment to the Constitution of Ohio that gave the people the right, exercisable by referendum, to approve or disapprove any law enacted by the Ohio legislature.[12] In 1915, the state legislature passed a new plan for Congressional redistricting, which the people of Ohio then disapproved via referendum.[13] After failing to secure relief at the Ohio Supreme Court, petitioners then approached the federal Supreme Court, asserting that this plan unconstitutionally curtailed the Ohio legislature’s plenary grant of authority under the Elections Clause to regulate Congressional elections.[14]

The Supreme Court declined to grant relief to the petitioners in this case. The Court instead read the Election Clause’s use of the word “legislature” broadly, to include “treating the referendum as a part of the legislative power for the purpose of apportionment, where so ordained by the state Constitutions and laws.”[15] The Court thus incorporated referenda into the legislative power contemplated by the word “legislature” in the Elections Clause.

The next in this line of cases, Hawke, did not concern the Elections Clause at all. Once again emanating out of Ohio, the people of Ohio sought to use their power of referendum to disapprove of the state legislature’s ratification of the Eighteenth Amendment.[16] Petitioners before the U.S. Supreme Court claimed that this was an unconstitutional abrogation of the Ohio state legislature’s exclusive power to ratify constitutional amendments pursuant to Article V of the U.S. Constitution,[17] which mandates in relevant part that constitutional amendments shall be adopted “when ratified by the legislatures of three fourths of the several states (emphasis added).”

The Court agreed, and held that the “ratification” function imparted to state legislatures by the Constitution was separate from the “legislation” function: while the latter could be construed as including actors and bodies besides the actual houses of legislators, the former function was reserved only for the Ohio state legislature itself.[18] The Court thus distinguished Hawke from Davis by holding that while the Court in Davis “recognized the referendum as part of the legislative authority of the state for the purpose stated,” “[s]uch legislative action is entirely different from the requirement of the Constitution as to the expression of assent or dissent to a proposed amendment to the Constitution. In such expression no legislative action is authorized or required.”[19]

In Smiley, the Court reviewed another congressional redistricting issue. The Minnesota state legislature had approved a redistricting plan which the Minnesota governor subsequently vetoed.[20] Petitioners argued, inter alia, that this was an unconstitutional abrogation of the legislature’s grant of authority conferred by the Elections Clause.[21] Once again, the Supreme Court disagreed. Drawing upon their precedent in Davis, the Court wrote that the legislative function mentioned in the Elections Clause “must be in accordance with the method which the State has prescribed for legislative enactments,”[22] and that in Minnesota, the State had made the Governor “part of the legislative process.”[23] The Court thus expanded the definition of “legislature” in the Elections Clause to include not only referenda as in Davis, but also governors, so long as both were authorized by the constitution of the state.

The Smiley court also clarified the distinction between the “legislative” function as implicated in Davis and Smiley and other functions imputed to state legislatures by the Constitution. While the former could be read expansively, latter functions—such as the “ratification” function mentioned in Hawke, the “electoral” function of choosing senators prior to the ratification of the Seventeenth Amendment, or the “consenting” function as in relation to Congressional acquisitions of land from states pursuant to Art. 1, § 8, Cl. 17 of the Constitution—are reserved only for the legislative bodies themselves.[24] The Court thus further distinguished the “legislative” function from other functions that the Constitution assigns to state legislatures.

Each of these cases was important to the Court’s decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.[25] In that case, the Court considered the constitutionality of an independent redistricting commission, established by initiative pursuant to the Arizona constitution, to create congressional redistricting plans entirely independent of the state legislature. The Arizona state legislature sued, alleging that this violated the authority granted to them by the Elections Clause.[26] Over the vigorous objections of Chief Justice Roberts, the Court majority found this scheme constitutional—and cited no Art. II ISLD cases while doing so.

The Court placed the Arizona commission squarely in the line of precedent established by Davis, Hawke, and Smiley. In contrast with the function of the state legislature at issue in Hawke, the Court held that redistricting was a “legislative” function, as opposed to another function like the ratifying, electoral, or consenting function.[27] Relying on Davis and Smiley, the Court went on to hold that the legislative function is “performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”[28] While the Court noted that “the exercise of the initiative . . . was not at issue in our prior decisions,” they nonetheless professed to see “no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking.”[29] The Court thus construed the legislative function implicated in the Elections Clause as inclusive of referenda such as the one that established the state’s redistricting commission, and thereby found no violation of the Elections Clause.

Not one of the preceding majority opinions references a single Presidential Electors Clause case for the purpose of interpreting analogous language in the Elections Clause.[30] The Art. II ISLD line of cases is only referenced in Chief Justice Roberts’ vociferous dissent in Arizona State Legislature. In dissent, the Chief Justice cited McPherson v. Blacker,[31] the first in the line of fundamental Art. II cases, to bolster his more limited reading of the word “legislature” in the Elections Clause. The Chief Justice asserted that Davis and Smiley were both decided “[a]gainst th[e] backdrop” of McPherson[32] despite the fact that neither case cited McPherson for its interpretation of the Presidential Electors Clause, and that Davis did not cite McPherson at all.

Notwithstanding Chief Justice Roberts’ dissent in Arizona State Legislature, the Court’s seminal Art. I ISLD majority opinions refuse to substantively engage with the leading Art. II ISLD cases at all. Throughout the Court’s Art. I ISLD caselaw, they have maintained a cordon sanitaire against citing Art. II ISLD cases. Despite profound similarities between the Elections Clause and Presidential Electors Clauses, the two lines of precedent have effectively developed into two different strands of caselaw. Thus, while Art. I ISLD cases are generally suspicious of granting exclusive and plenary power to state legislatures to determine regulations for Congressional elections, Art. II ISLD cases, discussed below, are much less hesitant to consider that state legislatures may hold this power exclusively.

Article II ISLD

Just as with Art. I ISLD and the Elections Clause, the leading Art. II ISLD cases which deal with the Presidential Electors Clause have refused to substantively engage with Art. I ISLD precedent, leading to the development of two different lines of caselaw.

The Presidential Electors Clause is found at Art. II, § 1, Cl. 2, and reads as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. (emphasis added)

The caselaw surrounding the Presidential Electors Clause is significantly more supportive of ISLD than the caselaw surrounding the Elections Clause. The three most important cases[33] in this line are McPherson v. Blacker,[34] Bush v. Palm Beach County Canvassing Board,[35] and Bush v. Gore.[36]

McPherson predates any of the Art. I ISLD cases discussed above. In McPherson, the Michigan state legislature had passed a law which changed the system by which the state apportioned its presidential electors. Instead of awarding the state’s electors according to the statewide popular vote, the new law awarded only two of the state’s electors to the winner of the statewide vote, with the rest going to the state’s congressional districts to represent the winner of the presidential vote in each of those individual districts.[37] The plaintiffs filed suit against the Michigan Secretary of State, alleging that the law violated, inter alia, the Presidential Electors Clause.[38]

Plaintiffs argued that the use of the word “State” in the Presidential Electors Clause implied that the state was to act as a unit in the assignment of its electors, and that “the appointment of electors by districts is not an appointment by the state, because all its citizens otherwise qualified are not permitted to vote for all the presidential electors.”[39] However, the Supreme Court disagreed with plaintiffs’ assertion that the Presidential Electors Clause could be read to constrain the power of legislatures to determine how they allocated their electoral votes. The Court instead held that the Presidential Electors Clause “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment.[40] McPherson thus established a broad grant of power from the Constitution onto state legislatures to determine the appointment of their presidential electors.

Bush v. Palm Beach County Canvassing Board was a case from the 2000 Florida election litigation and was the Supreme Court’s first foray into the Florida recount. After a mandatory recount was triggered by Florida statute, George W. Bush maintained his initial lead over Al Gore, but by a narrower margin than he had in the first count. Gore subsequently requested a manual recount of the votes in four counties.[41] Florida statutory law required the Secretary of State to certify the election by November 14 of that year,[42] but was contradictory about what to do with results received after that date. One statute read that the Secretary of State “may” ignore late manual recounts, while another statute read that the Secretary of State “shall” ignore such results.[43] The Secretary of State, a Republican, decided to ignore the late results and certify the election;[44] however, the Florida Supreme Court ruled that the Secretary was obligated to receive results until November 26 of that year.[45]

In a unanimous per curiam opinion, the United States Supreme Court vacated and remanded the decision of the Florida Supreme Court for clarification. The federal Court wrote that “[a]s a general rule, this Court defers to a state court’s interpretation of a state statute,” but that in this case, the Florida legislature was “not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under [the Presidential Electors Clause].”[46]  Pursuant to its review under this federal hook, the federal Court wanted the Florida Court to clarify the degree to which it had considered the Presidential Electors Clause. However, while the Court noted that it had in McPherson held that the Presidential Electors Clause operated as a “limitation upon the State in respect of any attempt to circumscribe the legislative power,”[47] it did not opine in Palm Beach County as to the breadth or scope of that limitation. Instead, it merely asked the Florida Supreme Court to clarify the extent to which it had construed the Florida Election Code to be consistent with the Presidential Electors Clause.[48] In reaching this outcome, the Court did not consider any of the cases in the Art. I ISLD line, including Davis, Hawke, or Smiley.

Of the leading cases that address the Presidential Electors Clause, perhaps the most notable—and certainly the most notorious—was Bush v. Gore.[49] Bush was a follow-up to Palm Beach County: after the United States Supreme Court vacated and remanded the Florida Supreme Court’s decision in Palm Beach County, the Florida Court returned with another decision that extended the date of the recount to December 8 of that year.[50] The federal Court intervened once again, but rather than vacating the decision of the Florida Court, they reversed it entirely. The majority did not address the Presidential Electors Clause issue: the basis of their ruling was the Equal Protection Clause, and they mentioned McPherson only in passing.[51] However, in his concurrence, Chief Justice Rehnquist (joined by Justices Scalia and Thomas) opined at length as to the scope and applicability of the Presidential Electors Clause.

Chief Justice Rehnquist wrote that McPherson stood for the proposition that the Presidential Electors Clause gives the “exclusive,” “broadest power” to the legislature to appoint a state’s presidential electors.[52] Chief Justice Rehnquist found further that the Florida state legislature had delegated the authority to run elections and oversee election disputes to the Secretary of State.[53] As such, the Chief wrote that “with respect to a Presidential election, the court must be both mindful of the legislature’s role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate.”[54] However, as in Palm Beach County, the Chief did not cite any Art. I ISLD cases.

Of the main opinions in the Art. II ISLD case line, the only opinion that substantively engages with Art. I ISLD precedent is Justice Stevens’ dissent in Bush v. Gore. [55] In that opinion, Justice Stevens cites Smiley for the assertion that a state legislature’s power to amend election law is cabined by the constitution of that state.[56] However, neither the majority opinions in McPherson and Palm Beach County nor Chief Justice Rehnquist’s concurrence in Bush see fit to mention the Elections Clause at all, much less any Supreme Court precedent, in their interpretation of the language of the Presidential Electors Clause. Instead, the foundational Art. II ISLD cases assiduously avoid referencing Art. I ISLD precedent, preserving the cordon sanitaire between the two lines of cases and creating two distinct doctrines: an interpretation of the Elections Clause which is generally hostile to ISLD, and an interpretation of the Presidential Electors Clause which is much more credulous, if not outright accepting, of ISLD.

History, Text, and Structure of the Elections and Presidential Electors Clauses

The Supreme Court has developed two distinct lines of caselaw for analyzing the Elections Clause and the Presidential Electors Clause, but an analysis of the history, text, and structure of each clause reveals that both clauses should properly be interpreted as analogous to one another. This mutual interpretation should rightly be closer to Art. II ISLD than Art. I ISLD.

Although current ISLD precedent does not intermingle the Art. I and Art. II case lines and has effectively created two substantively different lines of precedent, the language of the Elections Clause and the Presidential Electors Clause ought to be interpreted analogously. In U.S. Term Limits, Inc. v. Thornton, the Court wrote in dicta that the Article I duty that “‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[]’ . . . parallels the duty under Article II that ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.’”[57] Analysis of the Elections and Presidential Electors Clauses reinforces this conclusion, and further indicates that this identical meaning ought to be closer to the Art. II ISLD understanding than the Art. I ISLD version.

As Chief Justice Roberts noted in his Arizona State Legislature dissent, Founding-era dictionaries generally define the word “legislature” much more narrowly than Art. I ISLD cases might suggest. For instance, Samuel Johnson’s Dictionary of the English Language notes that “[w]ithout the concurrent consent of all three parts of the legislature, no law is or can be made,”[58] and Noah Webster’s American Dictionary of the English Language defines “legislature” as “[t]he body of men in a state or kingdom, invested with power to make and repeal laws . . . [which in] most of the states in America . . . consist of two houses or branches.” [59] Both of these definitions caution towards an understanding of “legislature” cabined to an actual lawmaking body of representatives, rather than—as various Art. I ISLD opinions have asserted or attempted to assert—state courts, unelected commissions, or the people generally.[60]

Historical practice regarding the use of “legislature” in the Elections and Presidential Electors Clauses also supports the claim that the term should be read analogously across the two, and that this reading should be closer, in some form, to the latter than former.[61] For instance, at the Massachusetts Constitutional Convention of 1820, it was understood that state constitutions were legally incapable of limiting the state legislature’s power over congressional and presidential elections.[62] Additionally, every state constitution from the Founding Era that used the term “legislature” defined it as a distinct multimember entity comprised of representatives.[63]

Finally, the structure of the Constitution itself also bolsters these conclusions. The Art. I ISLD cases concede that other provisions of the Constitution which specifically delegate power to state legislatures—for instance, the constitutional amendment ratification function in Art. V, or the Art. I, § 3 electoral function of choosing senators prior to the ratification of the Seventeenth Amendment—are reserved only for those institutional representative bodies.[64] This would suggest the word “legislature” should be read uniformly across the Constitution, including across both the Elections Clause and Presidential Electors Clause.[65] Yet, the Art. I ISLD case line insists that “legislature” be read more broadly in the context of the Elections Clause to encompass bodies besides actual representative bodies. The Art. II ISLD cases do not take this tack: while they do not reference any other instances of the word “legislature” in the Constitution, their interpretation of the word is nonetheless consistent with the interpretation of the word in the other aforementioned Constitutional contexts. An intratextualist and structuralist read of the Constitution thus indicates not only that the word “legislature” ought to be read uniformly across the Elections Clause and the Presidential Electors Clause, but that this interpretation ought to be closer to the Art. II ISLD version.


Despite profound similarities between the Elections Clause and the Presidential Electors Clause, the Supreme Court has created a dual-track independent state legislature doctrine featuring two district strands of caselaw that are almost entirely out-of-conversation with one another. Not one majority opinion amongst the seminal Art. I ISLD cases cites an Art. II ISLD case for its interpretation of the word “legislature,” and the same is true in reverse. However, an analysis of the text, history, and structure of the two clauses demonstrates not only that they should be read analogously, but that they should both be read closer to the narrower Art. II ISLD definition of “legislature” than the broader Art. I ISLD interpretation.


* J.D. Candidate, Harvard Law School (2023).

[1] No. 21-1271 (U.S.).

[2] Also referred to as the “independent state legislature theory” (ISLT).

[3] See, e.g., Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and State Constitutions, 55 Ga. L. Rev. 1, 90­–92 (2020) (“The most extreme approach would be to construe the term “Legislature” in the Elections Clause and Presidential Electors Clause literally, thereby implementing the independent state legislature doctrine to the fullest possible extent. Under such an approach, only a state’s institutional legislature may regulate federal elections—no other entities or processes (e.g., public initiatives or referenda) may be involved—and the state constitution may not impose substantive restrictions on the scope of the legislature’s authority.”).

[4] See, e.g., Vikram David Amar and Akhil Reed Amar, Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, 2021 Sup. Ct. Rev. 1, 33 (2022) (“The ‘legislature’ in Article I means ‘legislative process’ as structured by state constitution. . . . The Bush [v. Gore] concurrence championing ISL ideology simply ignored all this, making no mention whatsoever of [Art. I ISLD cases].”).

[5] See, e.g., generally Morley, supra note 3, at 69–90 (arguing that the Court’s understanding of ISLD was established by the Art. II case of McPherson v. Blacker, 146 U.S. 1 (1892); that the Court’s later Art. I ISLD cases suggest that the Court “may have harbored some degree of skepticism toward” ISLD but remained “fully consistent” with the understanding established by McPherson; that the Court’s return to Art. II ISLD in the 21st century was “an endorsement of the independent state legislature doctrine”; and, finally, that in the Art. I ISLD case of Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015), the Court went from “enthusiastically embracing the independent state legislature doctrine to rejecting it”).

[6] Br. by State Resp’ts at 53, Moore v. Harper, No. 21-1271 (U.S. Oct. 19, 2022) (“Petitioners next turn to decisions of this Court interpreting the Electors Clause—which is not at issue in this case. . . . But even assuming those decisions bear on the Elections Clause’s meaning, they do not help Petitioners.”).

[7] See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 805 (2015) (“[W]e summarize this Court’s precedent relating to appropriate state decisionmakers for redistricting purposes. Three decisions compose the relevant case law: [] Davis v. Hildebrant; Hawke v. Smith []; and Smiley v. Holm.” (citations omitted)).

[8] 241 U.S. 565 (1916).

[9] 253 U.S. 221 (1920).

[10] 285 U.S. 355 (1932).

[11] 576 U.S. 787 (2015).

[12] Davis, 241 U.S. at 566.

[13] Id. at 566–57.

[14] Id. at 567.

[15] Id. at 569.

[16] Hawke v. Smith, 253 U.S. 221, 224 (1920).

[17] Id. at 225.

[18] Id. at 229 (“The argument to support the power of the state to require the approval by the people of the state of the ratification of amendments to the federal Constitution through the medium of a referendum rests upon the proposition that the federal Constitution requires ratification by the legislative action of the states through the medium provided at the time of the proposed approval of an amendment. This argument is fallacious in this-ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment.”).

[19] Id. at 230–31.

[20] Smiley v. Holm, 285 U.S. 355, 361 (1932).

[21] Id. at 362–63.

[22] Id. at 367.

[23] Id. at 369.

[24] Id. at 365–66.

[25] 576 U.S. 787 (2015).

[26] Id. at 792.

[27] Id. at 807.

[28] Id. at 808.

[29] Id. at 808–09.

[30] Smiley does reference what, at the time, was the only extant Presidential Electors Clause case—McPherson v. Blacker, 146 U.S. 1 (1892)—but only for the proposition that “the terms of the constitutional provision furnish no such clear and definite support for a contrary construction as to justify disregard of the established practice in the states,” 285 U.S. at 369, and only as part of a string cite alongside Missouri Pacific Railway v. Kansas, 248 U.S. 276 (1919); Myers v. United States, 272 U.S. 52 (1926); and the Pocket Veto Case, 279 U.S. 655 (1929). None of these latter cases has anything to do with either the Elections Clause or the Presidential Electors Clause, and neither does Smiley reference McPherson specifically for its interpretation of the Presidential Electors Clause. Instead, Smiley only references McPherson, alongside several other cases, for broad principles of constitutional interpretation.

[31] 146 U.S. 1 (1892).

[32] Ariz. State Legislature, 576 U.S. at 840 (Roberts, C.J., dissenting).

[33] Michael Weingartner, Liquidating the Independent State Legislature Theory, 46 Harv. J.L. & Pub. Pol’y 135, 147–49 (2023) (“Proponents of the ISL theory [] claim to find support in a different set of Supreme Court decisions. The first of these [is] McPherson v. Blacker . . . Proponents of the ISL theory also point to Bush v. Palm Beach County Canvassing Board . . . In Bush v. Gore . . . Chief Justice Rehnquist [] wrote a concurring opinion.”)

[34] 146 U.S. 1 (1892).

[35] 531 U.S. 70 (2000).

[36] 531 U.S. 98 (2000).

[37] Id. at 24–25.

[38] Id. at 3.

[39] Id. at 24–25.

[40] Id. at 27.

[41] Id. at 73–74.

[42] Id. at 74.

[43] Id. at 75.

[44] Id. at 74.

[45] Id. at 75–76.

[46] Id. at 76.

[47] Id. (quoting McPherson v. Blacker, 146 U.S. 1, 25 (1892)).

[48] Id. at 77.

[49] 531 U.S. 98 (2000).

[50] Id. at 100.

[51] Id. at 104.

[52] Id. at 113 (Rehnquist, C.J., concurring) (citing McPherson, 146 U.S. at 13).

[53] Id. at 113–14.

[54] Id. at 114.

[55] Art. I ISLD cases are cited on two other occasions in the Bush dissents, but neither mention substantively engages with the cases on their interpretations of analogous language in the Elections Clause. Justice Ginsburg’s dissent cites Davis for its alternate holding that a question about the Elections Clause is nonjusticiable, but it does not cite Davis for any interpretation of the language of the Elections Clause. Bush, 531 U.S. at 142 (Ginsburg, J., dissenting) (citing Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569 (1916)). Justice Stevens’ dissent also makes passing reference to an argument that the Bush petitioners made with regard to Hawke, but neither Justice Stevens’ dissent nor any of the other opinions found that argument availing, and none besides Justice Stevens’ address the argument at all. Id. at 124 (Stevens, J., dissenting) (citing Hawke v. Smith, 253 U.S. 221, 221 (1920)).

[56] Id. at 123 (Stevens, J., dissenting) (citing Smiley v. Holm, 285 U.S. 355, 367 (1932)).

[57] 514 U.S. 779, 804–05 (1995).

[58] Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 828 (2015) (Roberts, C.J., dissenting) (citing 2 A Dictionary of the English Language (1st ed. 1755)).

[59] Id. (citing 2 An American Dictionary of the English Language 2 (1828)).

[60] See also Br. for Non-State Resp’ts at 19–20, Moore v. Harper, No. 21-1271 (U.S. Oct. 19, 2022) (citing these exact dictionary definitions, and noting that Petitioners correctly “acknowledge” them).

[61] Cf. Br. of Amici Curiae Professors Akhil Reed Amar, Vikram David Amar and Steven Gow Calabresi in Support of Respondents at 19–21, Moore v. Harper, No. 21-1271 (U.S. Oct. 24, 2022). Professors Amar, Amar and Calabresi cite the historical practice of two states – New York and Massachusetts – as evidence that historical practice weighs against a limited reading of the word “legislature.” But the professors readily admit that Massachusetts and New York were outliers: “In eleven states . . . the institution known as the “legislature” made the laws, and no one outside this institution participated in the lawmaking system.”

[62] Morley, supra note 3, at 38 (Justice Story, a delegate to the Convention, argued that the Convention did not “have a right to insert in our [state] constitution a provision which controls or destroys a discretion . . . which must be exercised by the Legislature, in virtue of powers confided to it by the constitution of the United States.”). But see Br. of Amici Curiae Professors, supra note 61, at 16–17 n.22 (conceding Justice Story a “towering figure” yet dismissing his comments as “mistaken”).

[63] Ariz. State Legislature, 576 U.S. at 828 (Roberts, C.J., dissenting) (citing Michael T. Morley, The Intratextual Independent “Legislature” and the Elections Clause, 109 Nw. U. L. Rev. Online 131, 147 and n.101 (2015)).

[64] Smiley v. Holm, 285 U.S. 355, 365–66 (1932).

[65] See also Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999).

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The Rising Importance of State Courts – Justice Gregory C. Cook

Posted by on May 22, 2023 in Obiter Dicta, Per Curiam

The Rising Importance of State Courts – Justice Gregory C. Cook
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The Rising Importance of State Courts

Hon. Gregory C. Cook*

The following is a lightly edited version of a speech by Justice Cook at Harvard Law School on April 1, 2023, at the Harvard Federalist Society’s annual Alumni Symposium. Justice Cook delivered these remarks while moderating a panel titled “The Rising Importance of State Courts” which also featured Judge John K. Bush of the United States Court of Appeals for the Sixth Circuit and Boies Schiller Flexner LLP partner Jesse Panuccio.

I am honored to be here today to talk about why state courts are important and becoming more important. I hope I can bring a unique perspective. I have spent almost exactly half of my career in state court and half in federal court. Even more unique, I have just finished campaigning for the Alabama Supreme Court. And, right in the middle of my campaign, the Dobbs decision was leaked and then released. The fact that Dobbs transferred decisions about abortion from the federal level to the state level significantly intensified the interest of the voters in my race, and I think the Court will be sending other issues to the states. More than anything, Dobbs made me focus on the rule of law as a touchstone as I talked to people on the campaign trail. People became acutely aware of the importance of electing judicial conservatives to their state Supreme Court if they wanted a court which would say what the law is, rather than what it should be. As I told the voters (both face to face and in my television advertisements), I am “boring and predictable” and intend to remain “boring and predictable” and to approach each case with this attitude. Often, my wife came on the campaign trail and would confirm to the audience, that I am indeed “boring and predictable.” Having campaigned for almost two years, I am confident that the voters of Alabama want judges who are boring and predictable; judges who do not surprise them. In fact, it may be time to rebrand originalism and simply refer to it as the “boring and predictable” approach.

Most of my early career was in state court. I spent time in rural courtrooms and tackling some large and some very small cases. There are 67 counties in Alabama, and I had cases in over 40 of them. It was a real eye-opening experience after spending three years in, some would say, the ivory tower at Harvard. Real people; real problems; real life; real solutions; real compromise; birds flying in the courtroom; depositions in front yards. It could be very personal. And, at least in the 1990s, subtle nuances were sometimes not the most effective arguments. When I began my practice in the early 90s, Alabama became known as “tort hell,” and we were a poster child for the national Chamber of Commerce and the Wall Street Journal. Judicial restraint was not a priority for our Supreme Court. The BMW decision—the U.S. Supreme Court case placing limits on punitive damages—is an Alabama case from that time period.[1] The business community eventually fought back and hired Karl Rove to run judicial campaigns. Business eventually spent approximately $20 million in campaign contributions, but changing the composition of a state supreme court is not fast or easy. It took three election cycles to change the majority of the court to a more textualist based judiciary.

State court can sometimes be a very rough-and-tumble place to practice law. As an example, I helped a partner try a bench trial within a week or so of having passed the bar exam. We drove to this rural county for an afternoon trial. We went to lunch at the barbeque restaurant across from the courthouse. When we entered, there sat the trial judge, having lunch with the plaintiff’s counsel. I do not say this to imply that this was unethical or even improper. It was not. In truth, they had lunch almost every day and had known each other for years. But this is not exactly how my civil procedure—or professional responsibility class—painted the everyday practice of law.

More recently, I have had the privilege to practice in federal courts across this country in some very large, complex cases. Federal courts work hard to get the answers right; they look carefully at nuances—but you don’t always get that “personal” feel in federal court. In fact, sometimes, cases progress through summary judgement entirely on the papers—and never appear personally in the courtroom. I will also say that, in my experience, most federal courts tend to be at least somewhat hesitant to make rulings on state law, or state constitutions, or state government matters. In short, most federal judges who I know are very conscious of not overstepping their assigned role in our dual sovereignty model. And, when they do make such rulings, try to intrude as little as possible into matters of state sovereignty.

As a newly elected justice, I believe Alabama is becoming a place which has the best of both worlds—providing real remedies to real people, but also paying close attention to the nuances of complicated legal arguments. I promise you things have changed in Alabama over the last 30 years and that I will always strive to listen carefully to every argument by all lawyers from all sides.

Most of my career has been as a private practice lawyer and I am a very, very new justice. So, my perspective is mostly as an advocate.

As an advocate, I am shocked that state constitutional arguments are not made in every single case where constitutional claims are raised. As a private lawyer, my clients did not care which arguments worked; they simply wanted to win their cases.

We are in the final weekend of the NCAA Basketball tournament, and I am certain that every coach wanted two free throws for each foul and not just one. The same is true in the courtroom. First, I strongly urge advocates to make both arguments—federal and state constitution. Second, you should not assume that the wording in the state and federal constitution is the same or that the caselaw is the same. Third, do not assume that the result will be the same under both documents even if the wording and caselaw is the same.

If you haven’t read Judge Jeff Sutton’s book on the importance of state constitutional law, you are really missing something, and much of what I say today is heavily influenced by his book.[2] In fact, he uses this free throw analogy.

The Left is waking up to this. Justice Brennan—a lion of the Left—wrote a key law review article in the Harvard Law Review in 1977. It was entitled: “State Constitutions and the Protection of Individual Rights.” The synopsis from the article is insightful, and I quote:

During the 1960s, as the Supreme Court expanded the measure of federal protection for individual rights, there was little need for litigants to rest their claims, or judges their decisions, on state constitutional grounds. In this article, Justice Brennan argues that the trend of recent Supreme Court civil liberties decisions should prompt a reappraisal of that strategy. He particularly notes the numerous state courts which have already extended to their citizens, via state constitutions, greater protections than the Supreme Court has held are applicable under the federal Bill of Rights. . . .[3]

If a state supreme court renders a decision, we are almost always the final word, especially if we are construing our state’s constitution.[4] State courts are where the action is today. State courts are where over 95% of all cases in the county are filed. According to the last numbers I have seen, there were 83,000,000 civil and criminal cases were filed in state courts.[5] The counterpart number in the federal courts is 400,000.[6] Think about it: 83,000,000 to 400,000. If you drill down to just the criminal cases, the disparity is even larger (17,000,000 to 70,000).[7]

Political groups know this. For instance, there was almost $4 million dollars spent on advertising in my Supreme Court race. Or, take North Carolina. Before the 2022 election, there was a 4-3 Democratic majority. They ruled that a constitutional amendment requiring voter ID was unconstitutional. Let me say that again slowly, they ruled that a part of their constitution, approved by the people in a statewide election, was unconstitutional. It did not surprise me that in their 2022 Supreme Court election and after a hotly contested election, the people switched the court from 4-3 Democrat to 5-2 Republican.

Or, consider Pennsylvania. It is 4-2 Democratic. In a split 2020 decision regarding the hotly contested election for President, three Justices said undated mail in ballots should be rejected, while three Justices said undated ballots should count; and the seventh Justice said undated ballots should be rejected in the future but allowed in that year’s Presidential election.

Or, consider Ohio. Until 2021, the parties nominated candidates but the party label was not listed on the general election ballot. After a Democrat won in the 2020 election and helped change the court balance, the legislature changed the law to put the party on ballot. Among its most contentious issues has been redistricting. The Democratic court twice rejected a Republican legislature’s Congressional map, and that dispute is still ongoing.

Or, consider Wisconsin. Conservatives held a 4-3 majority (there were no party labels). In the first election after the Dobbs decision (April, 2023), a conservative and liberal ran for the same open seat. The main issue in the election was abortion and the liberal candidate and her supporters made abortion the major campaign issue. I believe that the total campaign spending, on both sides, will exceed $50 Million in that race. More than any other race, this election has made the election of state court judges appear like true political races for the legislature.[8] While I am a fan of the election of state court judges and federalism, I fear this trend. I wonder exactly how we can draw a line which does not mean the loss of the important respect courts need to enable us to resolve difficult and hotly contested cases.

So, there is a great deal of action going on in state courts today. This should not surprise us. The majority of our Bill of Rights came from pre-existing state constitutions in the 13 original states. At our nation’s founding, the real need for protection was from state governments. The federal government was smaller than state governments. States ran everyday life. No one believed that the federal Constitution applied to states (and it really didn’t—with a very few exceptions). Hamilton even said: “There is no need for a Bill of Rights because states would be sentinels over the rights of the peoples.”

Judge Sutton has argued that it is less risky and easier for a state court to broaden an interpretation of a constitutional right. States have traditionally been our laboratories. It is part of the beauty of federalism. Allowing state courts to be the primary agents of change should hopefully improve the United States Supreme Court’s decisions. It will lower the resentment from counter-majoritarian decisions at the federal level. Also, a state court can rule more broadly because it has a more homogeneous population and circumstances. Judge Sutton calls this argument the “federalism discount.” State courts are much better positioned to recognize local conditions and traditions which bear on what those citizens perceive as truly fundamental rights worthy of constitutional protection. For instance, Wyoming citizens will probably be more protective of property and firearms and Utah citizens may be especially protective of freedom of religion.

Also, many states have mandatory appellate jurisdiction in their supreme courts, whereas the United States Supreme Court accepts only a tiny percentage of cases for certiorari each year. In other words, you are far more likely to make actual final, binding precedent if you go the state court route.

Also, state constitutions have different text and history, including some clauses that one may have never heard about: single subject rules, uniform law clauses, right to remedy clauses, title of bill clauses, among others. For instance, in Alabama we have the longest constitution in the United States, and we have a number of clauses that either are not in the federal Constitution, or which are notably different from the federal Constitution. Just a few examples are:

  • Article I, §23: “nor shall private property be taken for private use. . . .”
  • Article I, §13: “That all courts shall be open; and that every person, for any injury done him, in his lands, goods, or reputation, shall have a remedy by due process of law. . .”
  • Article I, § 26: “Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.”
  • Article I, §33: “The privilege of suffrage shall be protected by laws regulating elections and prohibiting . . . . improper conduct.”

In addition, Alabama’s constitution has an express separation of powers provision (arguably preventing certain delegation of legislative powers—Article III, §43), a one subject rule for each law (Article IV, §45), a provision preventing changing of the original purpose of the bill (Article IV, §61), and many “local” constitutional amendments which cover only one county. Standing is yet another area where states courts may reach a different result under their state constitutions than federal courts, a point which I recently noted in a special writing.[9]

One particularly helpful example which Judge Sutton’s book explores is San Antonio v. Rodriguez.[10] This was an effort to force a constitutional right to equal school funding among school districts. The United States Supreme Court rejected this. Justice Powell reasoned that there was no right to education in the Constitution.[11] Diligent plaintiff lawyers did not give up. They brought state action in Texas state court and won, because there was language in the Texas Constitution which does discuss education directly.[12] Likewise, this happened in many other states. By Judge Sutton’s count, there have now been 44 states where this type of claim has been brought and the plaintiffs have won 27 of them.[13] Plaintiffs in these cases may also have achieved results that are more broad than they could have received from the U.S. Supreme Court, given federal courts’ hesitancy to order that state taxes be raised.

It is true that the dial probably moves in only one direction—more protection not less, meaning that the state court cannot restrict the protection given by federal courts under the federal constitution.

To the extent our audience includes conservatives, one might say that all of these extensions are liberal ideas—why should we care? One might point to the same sex marriage case from the Supreme Court of Massachusetts.[14] One might point to abortion—for instance, the South Carolina Supreme Court decisions, post Dobbs, striking down a heartbeat law based upon the right of privacy (which is in the text of the South Carolina Constitution).[15] Or, one might point to redistricting litigation in many states where some state supreme courts have held—contrary to the United States Supreme Court[16]—that partisan gerrymandering is justiciable and unconstitutional under their state constitutions.[17]

However, I believe those conservatives would be wrong. I expect that in the future conservatives will bring cases to enforce state constitutional rights. For instance:

  • Free speech against various state laws and agencies.
  • Free exercise of religion claims. The pandemic is a perfect example of state governments imposing incredibly restrictive rules on houses of worship. In fact, the reaction of many state courts to Employment Division v. Smith[18] to recognize a broader protection of the free exercise of religion than did the U.S. Supreme Court is an example of what can occur in state courts.[19]
  • Economic regulations. For instance, mandatory licensing cases (making the scrutiny stricter than Williamson v. Lee Optical).[20]

Other examples might be rent control or other economic rules that could be construed as takings or impairments of contract rights. Perhaps the best example of a case which might come out differently under some state’s constitutions is Kelo.[21] Or even Lochner-type economic rights. Another issue might be commercial speech protections or, election law efforts (to protect the secret ballot or election security issues).

I note the question which I have received from the audience regarding whether sending these issues to the states is good or bad. As posed, the student noted the decades of efforts of conservatives to appoint textualists to the federal courts and, especially the United States Supreme Court. Another student noted the difficulty of finding textualists for the many state court judicial positions and the difficulty of attracting qualified jurists given that the pay and support may not be equal to federal court. I reject these concerns. I think there are many qualified lawyers who believe in the rule of law and are willing to serve.

More fundamentally, I reject the premise of the question. Our constitution is built on the mandate for federalism. Federalism is beautiful. It is democracy in action. It is what conservatives have been requesting for decades. As a conservative, I do not believe I should win every argument. Instead, I believe that we should have those arguments and the best argument should win the day, rather than having the result dictated from Washington. And, it may be that my argument loses in a particular state and wins in another state. In sum, I believe the decision should be local, if at all possible.

Before I sit down, I want to urge our audience to consider getting involved in the state constitutional field. Of course, I urge you to consider a state supreme court clerkship. There is also lots of room for new scholarship. I am especially thinking of research and writing on the original public meaning of many state constitutional provisions and their history. Many state justices have begun expressly calling for additional scholarship in their writings. I hope those opinions and programs like this will highlight how open this field is to young scholars looking to make their mark. In some other areas, young scholars may be drowned out by lots of other voices.  However, in state constitutional law, a young lawyer may be the only voice. We often take for granted the wealth of resources to use for textualist analysis for the federal constitution, but the dearth of such resources on the state level may slow the develop of textualist analysis.

I could imagine law review articles or even treatises. Such scholarship might concern a single state, or a single subject (for instance, what type of variations exist in state constitutions on a particular subject like freedom of religion). I can even imagine a treatise or a Restatement effort to categorize the different types of clauses, given the likely connection between many of our state constitutions. I could also imagine scholarship on a framework for judges to decide such issues. For instance, should we (as Judge Sutton mentions)[22] decide state constitutional issues before federal constitutional issues?

I look forward to serving in the courts of the great State of Alabama, and as I look around this room I am optimistic about the future of not only my state, but the many others in which you will reside and, hopefully, serve.

* Greg Cook is an Associate Justice on the Alabama Supreme Court, having taken office in January 2023. Justice Cook is a 1991 graduate of Harvard Law School, magna cum laude, and is a former Executive Editor of the Harvard Journal of Law & Public Policy. He is the author of, among others, the Alabama Rules of Civil Procedure, Annotated (2018, Thomson Reuters). His daughter, Mary Catherine Cook (Harvard Law ‘24 and a JLPP editor) introduced him to the audience.

[1] BMW of North America, Inc. v. Gore, 517 US 559 (1996).

[2] Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018). Judge Sutton sits on the United States Court of Appeals for the Sixth Circuit.

[3] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 489 (1977).

[4] The United States Supreme Court rarely has any authority to review state court decisions based upon their state constitutions. Conceptually, they could decide that a state supreme court’s interpretation of its state constitution (like its interpretation of a state law) somehow violates the federal Constitution. One example is the pending case from North Carolina regarding redistricting. The North Carolina Supreme Court (where Democrats held a 4-3 majority until recently) ruled that the proposed redistricting maps, drawn by the Republican Legislature, violated the state constitution. The Legislature then sought certiorari in the United States Supreme Court based upon the independent state legislature theory, claiming that the federal Constitution’s elections clause governs over the North Carolina Supreme Court’s construction of its constitution. That provision states that the time, place, and manner of congressional elections “shall be prescribed in each State by the Legislature thereof.” Moore v. Harper, Docket No. 21-1271.

Regardless of the outcome in Moore, this type of argument is exceptionally uncommon and there is much debate over even this limited theory. Given that the North Carolina Supreme Court (with a newly constituted Republican majority) has granted rehearing in this case, it is also possible that the United States Supreme Court will not reach a result in this matter.

[5] Ct. Stats. Project, Nat’l Ctr. for State Cts., State Court Caseload Digest: 2018 Data 7 (2020), [].

[6] Admin. Off. of U.S. Cts., Federal Judicial Caseload Statistics 2018 [hereinafter Admin. Off., Statistics 2018], U.S. CTS., [] (last visited Aug. 14, 2022) (358,563 cases filed); Admin. Off. of U.S. Cts., Federal Judicial Caseload Statistics 2020 [hereinafter Admin. Off., Statistics 2020], U.S. CTS., [] (last visited Aug. 14, 2022) (425,945 cases filed).

[7] Ct. Stats. Project, supra note 5, at 7; Admin. Off., Statistics 2018, supra note 6. But see Admin. Off., Statistics 2020, supra note 6 (93,213 federal criminal cases filed).

[8] See generally Shawn Johnson, For the first time in 15 years, liberals win control of the Wisconsin Supreme Court, NPR (Apr. 4, 2023),

[9] Hanes v. Merrill, No. SC-2022-0869, So.3d (Ala. 2023) (Cook, J., concurring).

[10] 411 U.S. 1 (1973).

[11] Id. at 35.

[12] Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989); Tex. Const. art. VII, §1 (“[I]t shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”)

[13] Sutton supra note 2, at 30.

[14] Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

[15] Planned Parenthood South Atlantic v. State of South Carolina, 438 S.C. 188 (S.C. 2023) (construing Article 1, Section 10 of the South Carolina Constitution). This decision was 3-2 and the privacy provision is subject to competing interpretations, as explained in the dissent. It is possible that this decision is not the last word on this issue for South Carolina given ongoing debate the retirement of one justice and pending legislation.

[16] Rucho v. Common Cause, 139 S.Ct. 2484 (2019).

[17] Harper v. Hall, 380 N.C. 317, 868 S.E.2d 499 (2022).

[18] 494 U.S. 872 (1990).

[19] See, e.g., Minnesota v. Hershberger, 462 N.W.2d 393 (Minn. 1990) (Minnesota Supreme Court originally ruled in case regarding Amish practices based upon federal constitution; after remand after release of Smith, court reached same result under its state constitution).

[20] 348 U.S. 483 (1955) (state laws regulating business are subject to only rational basis review; finding no constitutional violation for a law making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances, except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist). An example of a contrary result is Ladd v. Real Est. Comm’n, 230 A.3d 1096 (Pa. 2020) (concluding that a licensing regime violated the Pennsylvania Constitution’s right to pursue a chosen occupation).

[21] Kelo v. City of New London, 545 U.S. 469 (2005).

[22] Sutton supra note 2, at 178–79.

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A Federal Judge Pays Respect to State Supreme Courts – Hon. John K. Bush

Posted by on May 18, 2023 in Obiter Dicta, Per Curiam

A Federal Judge Pays Respect to State Supreme Courts – Hon. John K. Bush
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A Federal Judge Pays Respect to State Supreme Courts

Hon. John K. Bush*

The following is a lightly edited version of a speech by Judge Bush at Harvard Law School on April 1, 2023, at the Harvard Federalist Society’s annual Alumni Symposium. Judge Bush delivered these remarks while speaking on a panel titled “The Rising Importance of State Courts,” which also featured Boies Schiller Flexner LLP partner Jesse Panuccio, and was moderated by Justice Gregory C. Cook of the Supreme Court of Alabama.


Thank you to the Harvard Federalist Society for hosting this wonderful symposium and for inviting me to participate on this panel. I must confess, though, that when I received the invitation, I did a double take. What do I, a federal judge, have to say about state supreme courts? I am far removed from state courts. At least $75,000 and two state citizenships, to be exact.[1] Perhaps a motion for a remand is in order.[2] But at the risk of making a federal case out of this, here goes.

Like Justice Cook, I bring more experience as a lawyer than as a judge to our discussion. I was an advocate in both federal and state courts for 27 years, before joining the bench about five and a half years ago. I was in the HLS class of 1989, which means I was a 3L when Justice Cook was a 1L. Future President Barack Obama was in Justice Cook’s class. So, I have this advice for the 3Ls here today: pay attention to the 1Ls. They may run the country someday.

As a federal circuit judge, I help manage the Sixth Circuit. But for reasons I will explain, Justice Cook has far more control over his jurisdiction, the state of Alabama, than I do mine. In fact, as I consider my federal judicial role, it seems that I am less the leader than a follower. How can that be so?

Well, on questions of fact, our court (like Justice Cook’s) generally respects the determinations of trial courts. We review lower court findings of fact for clear error.[3] And in reviewing verdicts, we do not “reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for that of the jury.”[4]

True enough, you might say, but what about questions of law? Don’t I have power because I review legal issues de novo?[5] That standard of review, I would submit, is somewhat of a misnomer. For even though we do not defer to district courts on questions of legal interpretation, we appellate judges do not have a completely free hand. Of course, we are bound by the text of the law. And in interpreting that text, we have two groups of bosses. On questions of federal law, my court is bound to follow the direction of the U.S. Supreme Court. And when it comes to state law, our bosses are state supreme courts. For questions of state law, my task is two-fold: to defer and to predict. If the state supreme court in charge of the law I’m applying has decided the legal issue, I must defer to that interpretation.[6] If that supreme court has not yet decided the issue, then I must predict what that court would do.[7]

So, properly understood, the role of a federal court of appeals judge is rather confined. I suspect, though, that many law students don’t think so. They may think that we are like supreme court justices because supreme court decisions are mostly all that they read in constitutional law class. And at national law schools like Harvard, the emphasis historically has been on the U.S. Supreme Court, not state supreme courts.

This educational approach, I submit, has created a somewhat shortsighted way of looking at the law—particularly state law. If one leaves law school having a primary focus on federal law, particularly as interpreted in federal constitutional cases decided by the U.S. Supreme Court, then that perspective may hamper one’s worldview. It can cause an attorney to ignore or not even be aware of viable arguments under state law.[8] And it can cause a judge to forget that state law may be a decidedly different animal than its federal counterpart. It can lead a state court to reflexively interpret a state constitutional provision to have the same meaning as the U.S. Supreme Court has given a parallel federal constitutional provision, even though the two provisions do not have precisely the same wording or history.[9] And it can lead federal judges to think they know what’s best for the interpretation of state law based on their experience with federal law. It creates the risk that federal judges will start interpreting state law not for what it is but instead for what we think it should be.

To explain, let me give some background. First, it is a bedrock principle that when it comes to the interpretation of state law, the buck stops with the state supreme court, not a federal court, not even the U.S. Supreme Court. For that principle we go back to 1874 and a case from a state in my circuit. In Murdock v. Memphis the U.S. Supreme Court declined to second guess the Tennessee Supreme Court in a state-law dispute over title to land.[10] The U.S. Supreme Court held that state court rulings on state law are not reviewable by federal courts.[11] This understanding is rooted in the text of the Judiciary Act of 1789, along with its amendments in 1867.[12]

This principle that state supreme courts control the interpretation of state law extends beyond the holding that federal courts cannot overturn a decision of a state court on state-law grounds. It also means that, even in federal cases, federal courts are to defer to state supreme courts in the interpretation of state law.[13] This comes up most frequently in diversity. In these cases, we are applying a particular state’s law, as interpreted by that state’s highest court. Consistent with the purpose of diversity jurisdiction, federal courts are involved in deciding disputes only to make sure that out-of-state litigants get a fair shake.[14] But we decide those cases always against the backdrop that state supreme courts control the interpretation of the state law we apply. This is how Federalists defended diversity jurisdiction against Antifederalist concerns about federal courts having too much power over state courts.[15]

Now, when a state supreme court has not addressed a particular question of law, we may also look to decisions by that state’s courts of appeals to see if we can reasonably forecast how the state supreme court would rule.[16] Erie v. Tompkins confirmed that the “laws of the several states” include the decisions of the state courts.[17] Sometimes, though, we lack guidance from any state court.

For new or unsettled significant questions of state law, we can—and I have argued should—certify the question to state supreme courts.[18] If the relevant state supreme court has not yet definitively resolved an important state-law issue, a federal judge’s assessment of that issue cannot escape being a forecast rather than a determination.[19] A federal court might make an inaccurate forecast and later be proved wrong if the state supreme court decides the issue the other way.[20]

Probably in response to the problem of inaccurate federal-court guesses, Florida was the first state to enact a certification procedure in 1945.[21] Today, every state except North Carolina has this option.[22] Generally, the certification process allows the state’s highest court to accept and decide questions of state law necessary to the decision of lawsuits pending in federal courts and, in some states, the courts of other states.[23] The U.S. Supreme Court recognized the procedure for the first time in 1960, has repeatedly commented favorably on it, and sometimes instructs lower courts to consider it on remand.[24]

My court had a case back in 2018 and 2019 where I argued that we should certify a novel question of Tennessee law to the Tennessee Supreme Court.[25] It was another case from Memphis, but this time a dispute over the constitutionality, under Tennessee’s constitution, of a statutory cap on punitive damages, among other things.[26] What made the panel decision so unusual was that our court struck down a Tennessee statute based on the Tennessee constitution. No federal constitutional provision was involved. I dissented from rehearing that case en banc.[27] I invited our court to establish guidelines for when a panel should certify a question.[28] I think it would be a good idea for all of the circuits to establish certification guidelines, unless and until the Supreme Court provides more guidance. This will increase predictability for litigants and prevent intra-circuit splits on when certification is appropriate.[29]

Most important, I think the judicial system is generally better off when federal courts certify more questions of state law to state supreme courts. Reluctance to certify incentivizes forum-shopping between federal and state court.[30] Also, as the U.S. Supreme Court has stressed, certification can save time, energy, and resources.[31] It helps build a cooperative judicial federalism,[32] and these concerns are especially weighty when a federal court is asked to invalidate a state’s law under a state constitution.[33]

The U.S. Supreme Court has cautioned against “friction-generating errors” that may result from federal courts construing new state laws that a state’s highest court has not reviewed yet.[34] Finally, and relatedly, the Supreme Court has indicated that we should avoid making an Erie guess that would invalidate a state law where certification makes avoidance possible.[35]

Two common objections to certification are (1) that it delays the case and (2) the possibility that the state court won’t take the case or doesn’t want to be bothered. While delay is an issue, it is more important to get the right answer after a longer process than the wrong answer done quickly. Even if a state supreme court might not accept the certified question, we still owe it to the state to give its highest court the option to be the first court to decide an important question of that state’s law. Certification is a valuable mechanism for preserving the sovereignty of state courts.[36] If a state supreme court declines to decide the certified question, it shares in the responsibility for any “friction-generating error” produced by our court’s decision.[37]

So, what is my point with this discussion of Erie and certification? It is not merely to bring back fond memories of civil procedure class. It is simply this: state supreme courts are important because, under our governmental system, they have the ultimate control over the interpretation of state law. Federal courts should not try to take this power away. We should stay in our lane.

Now I want to talk about the obverse issue: to what extent do state supreme courts have power over the interpretation of federal law? Your first response may be that, of course, state supreme courts have no such authority. Their decisions as to federal law are all reviewable by the U.S. Supreme Court, right?

That is true. But I will offer a few examples where federal courts, in fact, defer to state supreme courts in applying federal law. In fact, even the U.S. Supreme Court defers to state supreme courts sometimes when applying federal law. It happens, for instance, when federal statutory law borrows from state law.

A noteworthy example is the Federal Tort Claims Act.[38] The FTCA borrows the state tort law “of the place where the act or omission occurred,” with some modification for no strict liability or punitive damages.[39] Also, when federal law provides no rule of decision for actions brought under 42 U.S.C. § 1983, such as a statute of limitations or tolling, Congress—in § 1988—has instructed federal courts to refer to state statutes.[40]

Another example involves cases under the Armed Career Criminal Act (ACCA).[41] That statute provides for sentencing enhancements if a defendant has committed three prior violent felonies or serious drug offenses.[42] Often, these prior convictions are state crimes whose scope and details have been developed by state courts. Federal courts compare the elements of the state crimes to ACCA’s definition of a “violent felony” or “serious drug offense.”[43] We are bound by how states have defined their crimes, which sometimes means the elements will not match or be too broad to be a violent felony, even if the name of the crime sounds like it would qualify as such.[44] (An “aggravated” robbery for example, may be a violent felony in one state but not another.)  Federal courts are not authorized to expound on the particulars of these state offenses. Instead, we must determine how the state supreme court would rule.

Finally, habeas review of state criminal conviction is another important area where federal courts defer to state courts. Here again, a federal statute controls a lot of the procedures, and specifically how federal courts will defer to state courts. That statute, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),[45] requires federal habeas courts to defer to a state-court interpretation of federal constitutional law, if it is reasonable.[46] In other words, even if we think the state courts got the interpretation of federal constitutional law wrong, we deny habeas relief so long as that interpretation was within the realm of reasonableness. Determinations of factual issues by state courts are also presumed to be correct, unless the petitioner can rebut them by clear and convincing evidence.[47] In both cases, the Supreme Court has told us that if a state court does not explain its decision, federal courts should “look through” to the last related state-court decision that does provide a rationale.[48] Here again, state courts and their decisions are vital to the federal case being decided by federal judges.

In these varied areas, federal courts have long had the obligation to defer to state supreme courts in the interpretation of not only state law, but also federal law.

In recent years, state courts have again realized how large, and thus important, their role is. Maybe we have my colleague Chief Judge Jeff Sutton to thank for this, at least in part, because of the excellent books he has written on state constitutional law.[49] Of course, the legal landscape has changed also. Decisions of the U.S. Supreme Court are driving this renewed interest in state supreme courts. Cases like Dobbs[50] highlight that state courts have the final say on some of the most impactful areas of the law.

As increased attention falls on state supreme courts, there is commensurately more interest in how members of those courts are selected or elected. States choose their highest court judges through elections, appointments, and some hybrid methods. Twenty-six have some form of gubernatorial appointment, with twenty-one of these states restricting the governor to appoint from a list of candidates prepared by a commission or board, while governors in the other five states (including Massachusetts) are not so restrained.[51] In two states, South Carolina and Virginia, the legislators select the judges.[52] In the remaining twenty-two states, direct elections are held.[53] Thirteen of these states have non-partisan elections, and eight attach partisan labels. Michigan has a unique system in which candidates are chosen at political party nomination conventions, but the general election is held without partisan labels.[54] Ohio did this too until January 2022, when it switched to the partisan general elections.[55]

My home state, Kentucky, has nonpartisan judicial elections.[56] Last year, my court heard a case about two candidates who allegedly engaged in partisan conduct.[57] The panel decision found that the Kentucky Judicial Conduct Commission’s Code of Judicial Conduct rules, as applied to these two candidates in vague threats, likely violated the First Amendment.[58] Campaign materials with a generic elephant and identifying the candidates as conservative and Republican did not rise to the level of claiming to be the party’s nominee.[59] And, endorsements by pro-life groups, which did not fall within the definition of a political organization in the Code of Conduct, did not mean the candidates were committing to deciding cases involving abortion in a certain way.[60] Thus, we held, the challenged conduct and speech were likely protected by the First Amendment.[61]

Wisconsin is another state with nonpartisan elections, but its voters recently experienced an election in which judicial candidates weighed in on various issues as part of the campaign. The race featured one candidate who called the state’s legislative maps “rigged” and referred to “precedent changes” about a 2011 state law.[62] This candidate also accepted contributions from the Democratic Party of Wisconsin.[63] She ran ads disclosing her position on abortion and was endorsed by two large pro-choice groups.[64]  Meanwhile, the other candidate was endorsed by the state’s three largest pro-life groups and had historical ties to the Republican Party.[65] The Wisconsin contest ended up being the most expensive judicial election in American history to date.[66]

That state supreme court candidates have become more assertive on issues in judicial campaigns reflects a transfer in final decision-making from the U.S. Supreme Court to state supreme courts. As one of my clerks, Ross Hildabrand, and his brother, Clark Hildabrand, wrote recently, state judges may have been hesitant in the past to interpret their state’s constitution differently than analogous provisions of the federal constitution because the Supreme Court had decided it had the final say on many of the most important issues.[67] Now, state supreme courts are realizing that they don’t have to interpret their constitutions in lockstep with the federal constitution with respect to abortion,[68] and future U.S. Supreme Court decisions may return the final say on other areas to the states too.

All of these developments have made state supreme courts very consequential places. And I suspect the increasing importance of state supreme courts has influenced the career choices made by the clerks in my chambers. To be sure, the vast majority of my 21 former clerks thus far are in private practice. But there is a significant group—four of them—who have foregone or taken a sabbatical of sorts from law firms to work for state attorneys general. In fact, I have slightly more former clerks who work, or have worked, for state attorneys general than those who are assistant United States attorneys. The state-attorney-general-office option not only allows for more in-court arguments early in one’s career, but also the opportunity to work on important issues that are increasingly being decided in lawsuits brought or defended by state attorneys general. In the past few years, such cases have run the gamut, involving election law, abortion, COVID-related restrictions, and a host of other important issues.

The increasing importance of state supreme courts also highlights the need for quality attorneys to run for office in those states that elect judges or to throw their names into the hat for consideration in those states where judges are appointed. The caliber of the judiciary should be high at both the federal and state levels; otherwise, the rule of law suffers.

I encourage you to consider making it a goal to improve the judiciary in your state. Of course, I would be happy if some in attendance today ended up as my colleagues in the federal judiciary. But I would be just as happy—perhaps even more so—if some of you followed Justice Cook’s lead to serve on the state-court bench.

In closing, let me say how pleased I am that this symposium is focused on state supreme courts. For me to do my job right as a federal judge, much depends on the work of state supreme courts. We federal judges need to remember that we do not know best when it comes to the interpretation of state law. And for the law students here, while I welcome your arguments based on federal law before our federal courts, don’t forget that state law and state courts are just as important, if not more so, for the lives of most Americans.

Thank you.

* Circuit Judge, United States Court of Appeals for the Sixth Circuit. Judge Bush acknowledges the assistance of his judicial extern, Mark L. Scalzo, in the preparation of these remarks.

[1] See U.S. Const. art. III, § 2, cl. 1; 28 U.S.C. § 1332(a).

[2] See 28 U.S.C. § 1446.

[3] Cooper v. Harris, 581 U.S. 285, 293 (2017).

[4] United States v. Wesley, 417 F.3d 612, 617 (6th Cir. 2005).

[5] See, e.g., United States v. Windham, 53 F.4th 1006, 1010 (6th Cir. 2022).

[6] Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001); see Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

[7] Allstate, 249 F.3d at 454.

[8] See Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 8–10 (2018).

[9] Id. at 174–78.

[10] See 87 U.S. (20 Wall.) 590 (1874).

[11] Id. at 627–28, 635.

[12] Id. at 630–33.

[13] Erie, 304 U.S. at 78 (1938).

[14] Lindenberg v. Jackson Nat’l Life Ins. Co., 919 F.3d 992, 995 (6th Cir. 2019) (Bush, J., dissenting).

[15] Id. at 995–96.

[16] Id. at 996.

[17] Id. (citing Erie, 304 U.S. at 78).

[18] Id. at 997 (citing Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir. 1995)).

[19] Id. at 996 (citing R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 499 (1941)).

[20] Id.

[21] Id.

[22] Id. at 997.

[23] Id. at 996.

[24] Id. at 996–97 (collecting cases).

[25] Id.

[26] See id.

[27] Id. at 995.

[28] See id. at 995–1002.

[29] Id. at 997, 1001.

[30] Id. at 997–99.

[31] Lindenberg v. Jackson Nat’l Life Ins. Co., 912 F.3d 348, 371 (6th Cir. 2018) (Larsen, J., concurring in part and dissenting in part) (citing Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 77 (1997)).

[32] Id. (citing Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)).

[33] Id. (citing Arizonans, 520 U.S. at 79); see Lindenberg, 919 F.3d at 1000.

[34] Lindenberg, 912 F.3d at 371 (citing Arizonans, 520 U.S. at 79).

[35] Lindenberg, 919 F.3d at 1000.

[36] Id. at 999 (citing Haley v. Univ. of Tenn.-Knoxville, 188 S.W.3d 518, 521 (Tenn. 2006)).

[37] Id. (citing Arizonans, 520 U.S. at 79).

[38] 28 U.S.C. §§ 2671–80.

[39] Id. at § 2674.

[40] 42 U.S.C. §§ 1983, 1988.

[41] 18 U.S.C. § 924(e).

[42] Id.

[43] United States v. Batey, No. 22-5339, 2023 WL 2401193, *1 (6th Cir. Mar. 8, 2023).

[44] See id.; Descamps v. United States, 570 U.S. 254, 257 (2013).

[45] Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 15, 18, 19, 21, 22, 28, 40, 42, 49, and 50 U.S.C.).

[46] 28 U.S.C. § 2254(d).

[47] Id. at § 2254(e).

[48] Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

[49] Sutton, supra note 8; see also Jeffrey S. Sutton, Who Decides? States as Laboratories of Constitutional Experimentation (2022).

[50] Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228, 2284 (2022).

[51] Partisan Election of Judges, Ballotpedia, (last visited Apr. 18, 2023) [].

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Fischer v. Thomas, 52 F.4th 303 (6th Cir. 2022).

[58] Id. at 310.

[59] Id. at 310–12.

[60] Id. at 312–13.

[61] Id. at 310–13.

[62] Editorial Board, Wisconsin Supreme Court Race Shows Folly of Electing Judges, Wash. Post, Mar. 29, 2023, [].

[63] Richard J. Epstein, Wisconsin Court Candidates Clash Over Abortion and Democracy, N.Y. Times, Mar. 21, 2023, [].

[64] Id.; see also Editorial Board, supra note 62.

[65] Editorial Board, supra note 62.

[66] Epstein, supra note 63.

[67] Clark L. Hildabrand and Ross C. Hildabrand, Who Decides? Depends on What the Federal Government Allows, 2022 Harv. J.L. & Pub. Pol’y Per Curiam 2, *5–7 (2022).

[68] For example, South Carolina’s Supreme Court held, earlier this year, that its state constitutional right to privacy is implicated when a woman gets an abortion. Planned Parenthood S. Atl. v. State, 438 S.C. 188 (2023), reh’g denied (Feb. 8, 2023).

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The Jurisprudence of Justice Samuel Alito: A Symposium

Posted by on Apr 24, 2023 in Per Curiam

The Jurisprudence of Justice Samuel Alito: A Symposium

JLPP: Per Curiam is proud to present The Jurisprudence of Justice Samuel Alito: A Symposium. The essays in this symposium, authored by prominent federal judges and renowned academics, focus in-depth on Justice Alito’s approaches to a wide variety of areas of law.

Versions of most of these essays were presented as addresses at a March 2022 symposium convened by Professor Robert P. George and Yuval Levin, co-hosted by the James Madison Program in American Ideals and Institutions at Princeton University and the American Enterprise Institute. An additional essay was later commissioned to analyze Justice Alito’s opinion for the Court in Dobbs.

The essays in this symposium can be accessed at the following links:

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The Elevation of Reality over Restraint in Dobbs v. Jackson Women’s Health Organization – Kevin C. Walsh

Posted by on Apr 24, 2023 in Per Curiam

The Elevation of Reality over Restraint in Dobbs v. Jackson Women’s Health Organization – Kevin C. Walsh
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The Elevation of Reality over Restraint in Dobbs v. Jackson Women’s Health Organization

Kevin C. Walsh*

In Dobbs v. Jackson Women’s Health Organization,[1] the Supreme Court buried the constitutional right to abortion that it brought forth in Roe v. Wade[2] and breathed new life into in Planned Parenthood of Southeastern Pennsylvania v. Casey.[3] Justice Alito’s opinion for the Court completely overruling Roe and Casey is an outstanding jurisprudential achievement. Alito not only completely dismantled Roe and Casey before burying them, but also countered Chief Justice Roberts’s imprudent reliance on judicial restraint and held together a majority divided over the continuing validity of other precedents.

The hallmark of Justice Alito’s opinion in Dobbs is legal-reality-based decisiveness. In legal reality, the Constitution supplies no right to abortion. The Court decisively determined that in Dobbs. The majority’s unflinching prudence in confronting grave institutional error powerfully contrasts not only with the Chief Justice’s institutionalist instinct for appeasement, but also with the three dissenting Justices’ inability to learn from or even acknowledge the errors of the Court’s abortion jurisprudence. The doctrinal reasoning in Dobbs traces directly back to the original dissents in Roe[4] and the dissenting opinions of Chief Justice Rehnquist and Justice Scalia in Casey.[5] The majority opinion’s continuity with the law as recognized and declared by shifting numbers of Justices over time is entirely to its judicial author’s credit, for Dobbs is a judicial opinion, not a chapter in a chain novel. Justice Alito’s authorship of the opinion for the Court in Dobbs should contribute to his judicial legacy over time as significantly as Justice Blackmun’s authorship of the opinion for the Court in Roe detracted from his. But whether Dobbs enhances or detracts from Justice Alito’s judicial legacy over time will depend on the relative corruption or perfection of the culture of constitutional adjudication in which that legacy is received and assessed.

Partial Doctrinal Harmonization in the Key of Glucksberg

The sole question presented in Dobbs was whether the Constitution forbids all pre-viability prohibitions of abortion. At issue was the constitutionality of a state law that prohibited abortion after fifteen weeks’ gestational age. As between the challengers and the state, the right ultimate outcome in Dobbs was not difficult to discern. Governing doctrine purporting to establish a right to abortion through viability was so unmoored from the law of the Constitution that there were multiple potential paths to decision, none uniquely correct.[6] A first way to take the measure of Dobbs is by comparing the path taken in Justice Alito’s opinion for the Court with the paths not taken as set forth in the concurring opinions.

Alito’s clear-eyed judiciousness in addressing the enormous errors of Roe and Casey contrasts sharply with Chief Justice Roberts’s squinting solo concurrence. Roberts’s proposal was partial overruling (which also would have amounted to partial upholding). Roberts would not have decided—at least in this case—that the Constitution confers no right to abortion. Instead, he would have described the previously announced right to abortion as something along the lines of “a reasonable opportunity to choose.”[7] Because the Mississippi law was not unconstitutional as measured against a right defined as a “reasonable opportunity to choose [abortion],” Roberts would have upheld the challenged law but then decided nothing more. His guiding principle here, he said, was “judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”[8]

The fundamental problem with this approach, Alito reminded Roberts, is that “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”[9] In contrast with the abortion right ensconced in Roe and extended in Casey, Roberts’s “reasonable opportunity to choose [abortion]” rule would have been a new right with a new rationale. It also would have been as much a partial affirmation of Roe and Casey as a partial overruling. But Roberts did not “attempt to show that this rule represents a correct interpretation of the Constitution.”[10] Whatever short-term benefits might result from leaving details of the new right’s reach undecided would soon be dissipated by the need to address abortion laws of other states.[11] The question of how much “the turmoil wrought by Roe and Casey [should] be prolonged” by the Court was a matter for prudential judgment.[12] Informed by the experience of almost fifty years under the Roe regime, Justice Alito and his four colleagues in the majority appropriately determined that “[i]t is far better—for this Court and the country—to face up to the real issue without further delay.”[13]

Alito was right. Earlier in the Term, the Court had already split over Texas’s Heartbeat Act with Roberts siding with the Dobbs dissenters.[14] It seems unlikely he would later change his assessment about the unconstitutionality of Texas’s Heartbeat Act and other state laws like it. After all, Roberts in Dobbs touted as a comparative advantage of his approach that “under the narrower approach proposed here, state laws outlawing abortion altogether would still violate binding precedent.”[15] Roberts’s “reasonable opportunity to choose [abortion]” was probably where he would have ended up after Dobbs as before. Given how the Texas cases went, that is where he already was.

One also cannot appropriately appraise Roberts’s appeal to restraint without evaluating the legal justice of the constitutional right to abortion that Roberts would have left in place. The Court’s decisions in Roe and Casey resulted in judicial occupation of a domain in which the federal judiciary had no right to be. There is nothing judicious about advocating restraint in returning that domain to those with lawful authority. If an invader were to cross a border and occupy territory properly belonging to someone else, there would be something fundamentally misguided about appealing to “occupier’s restraint” in justifying the unlawful occupier’s refusal to cede back all the ill-gotten territory. The requirement to return lawmaking authority to lawmakers relates back to the legal injustice of the earlier decisions taking it from them.[16]

Justice requires rendering to each his or her due. The final judgment part of this aspect of justice was easy in Dobbs, even according to Roberts. The Mississippi law’s challengers who brought the case were not entitled to any judicial relief. “I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis,” Roberts wrote. “That line never made any sense.”[17] That takes care of what the abortionists bringing the case were due: nothing. The government’s due on the other side of the v. is where Roberts diverged from Alito. Under Roberts’s redefinition of the constitutional right to abortion, state governments would receive back lawmaking authority for the period from fifteen weeks’ gestational age until viability. Under Alito’s analysis for the Court, however, this was too grudging. The divide between Roberts and Alito was partially a question of justice, inasmuch as it was a question of what the State as party to the case was due. But it was more a question of prudence, inasmuch as prudence is the intellectual and moral virtue that “applies universal principles to the particular conclusions of practical matters.”[18]

Coming into Dobbs, the Supreme Court’s “substantive due process” jurisprudence contained significant tensions. In the vintage years of substantive due process that began with Casey in 1992 and ended with Dobbs thirty years later, there were three principal lines of substantive due process doctrine. One was the line of substantive due process doctrine that emerged over the 1970s and 1980s and received its canonical formulation in the 1997 decision of Washington v. Glucksberg.[19] A second line was the abortion-specific substantive due process doctrine that the Court set forth in Casey’s 1992 repackaging of Roe and applied in the Court’s many abortion cases after. A third line ripened into maturity with Lawrence v. Texas in 2003,[20] from seeds sown in 1996 with Romer v. Evans.[21] This line, which bore fruit most prominently in the 2015 decision of Obergefell v. Hodges,[22] has principally been applied to extend rights related to sexual intimacy between persons of the same sex.

The most straightforward way to understand Dobbs doctrinally is that the decision eliminates the abortion-specific Roe/Casey line of substantive due process. The result is a partial harmonization of the doctrine that brings the outlier of abortion into the Glucksberg domain. The doctrinal harmonization is only partial, though, because Dobbs does not disturb Lawrence or Obergefell.[23] Significant tension therefore remains, for Glucksberg and Lawrence are plainly incompatible approaches to substantive due process.

Division over what to do with remaining substantive due process doctrine outside of Glucksberg was manifest in the separate concurring opinions of Justice Kavanaugh and Justice Thomas in Dobbs. Both Kavanaugh and Thomas have long recognized the incompatibility of Glucksberg and Casey. As then-Judge Kavanaugh noted in a lecture delivered a year before his nomination to the Supreme Court, “even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973—as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.”[24] Justice Kavanaugh did not suggest that Glucksberg was wrong. According to Justice Thomas’s originalist outlook, however, Glucksberg itself is incompatible with the law of the Constitution.[25] That is why Thomas in his solo concurrence called for a complete reconsideration in the future of all the Court’s substantive due process precedents.[26]

By contrast with Justice Thomas’s call for ending substantive due process entirely in the future, an explicit purpose of Justice Kavanaugh’s concurrence was to underscore this doctrine’s continuance: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of [Griswold, Eisenstadt, Loving, or Obergefell], and does not threaten or cast doubt on those precedents.”[27] This assertion by Kavanaugh underlined the statement made twice in Justice Alito’s opinion for the Court that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”[28]

Prudential Originalism in the Maintenance of Glucksberg

If Justice Thomas is right that all substantive due process doctrine is incompatible with the original law of the Fourteenth Amendment, then does it follow that Alito’s opinion for the Court in Dobbs is not originalist? Dobbs further entrenches Glucksberg, after all, and Glucksberg is a way of implementing substantive due process. The answer to this question depends on what one means by “originalist.” In my view, the most perspicacious distinction pertinent here is the one drawn by Professor Stephen Sachs in Originalism: Standard and Procedure.[29] According to Sachs, originalism is best understood as a standard of correctness rather than a procedure for making decisions.[30] Sachs’s deployment of this distinction is a helpful way of developing a distinction earlier drawn by Professor Christopher Green between “originalism [as] an ontological thesis about what makes constitutional claims true,” and originalism as an epistemological approach toward ascertaining true constitutional claims.[31]

With this distinction in view, a decision like Dobbs is originalist if it is oriented toward bringing constitutional doctrine more closely in line with original law plus any lawful changes to original law. Justice Alito’s opinion in Dobbs is clearly an originalist decision in its treatment of original law as a constitutional truthmaker.[32] Justice Alito opens his analysis by invoking Chief Justice John Marshall’s 1824 opinion for the Court in Gibbons v. Ogden and Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States for the propositions that “[c]onstitutional analysis must begin with ‘the language of the instrument,’ which offers a ‘fixed standard’ for ascertaining what our founding document means.”[33] As noted by the joint dissent, moreover, Alito’s opinion for the Court also states that “the most important historical fact [is] how the States regulated abortion when the Fourteenth Amendment was adopted.”[34] This history did not change between Roe and Dobbs; the Justices’ appreciation for its significance did. Alito’s opinion underscores this shift in two lengthy appendices that document the history of state-law (and territorial-law) prohibitions of abortion.[35]

Although the Dobbs dissenters are right about originalism’s importance to Alito’s opinion, they overstate its outcome-determining effect when they depict the decision as resting entirely on constitutional originalism. According to the Dobbs dissent, Alito’s opinion for the Court turns on a “single question: Did the reproductive right recognized in Roe and Casey exist in ‘1868, the year when the Fourteenth Amendment was ratified’?”[36] Contrary to the dissent’s single-minded anti-originalism, though, there is much more to Alito’s opinion in Dobbs than an inquiry into the state of the law in 1868. In keeping with the Glucksberg framework, the opinion for the Court also emphasizes the absence of any historical support for a constitutional right to abortion over the full first century of the Fourteenth Amendment’s operation—right up until the year before Roe when Justice Brennan planted the seed in Eisenstadt v. Baird.[37]

Glucksberg is certainly more consistent with the original law of the Fourteenth Amendment than Roe and Casey. But even on the reasonable assumption that constitutional originalism sometimes authorizes a Justice to rely on stare decisis in continuing to apply erroneous precedents, constitutional originalism lacks the resources on its own to dictate just how closely toward the original law to return the doctrine when reversing erroneous precedent. Understood as a criterion of correctness rather than a procedure for decisionmaking, originalism itself cannot generate a rule for deciding among various incorrect options. Rather, the Court’s reversal of Roe and Casey in favor of the Glucksberg framework reflected prudential judgment in adjusting a variety of sources of constitutional law by reference to constitutional tradition.[38] The need for this kind of judgment is one way in which Dobbs exemplifies the “distinction between the activities of (i) ascertaining the best understanding of the Constitution as law, and (ii) rendering judgment in a case according to all applicable law.”[39]

Unless original-law originalism requires maximal displacement of doctrine every time the Court confronts disharmony between existing doctrine and the best understanding of the law of the Constitution, judicial implementations of substantive constitutional law as understood by reference to original-law originalism will always be informed by prudential considerations of a similar sort as those seen in Dobbs. This raises the question of how to evaluate that kind of judicial selectivity. In my view, this kind of evaluation of judicial opinions issued by members of the Supreme Court of the United States can profitably be undertaken by reference to the virtues of justice and prudence. Having already considered certain aspects of justice, I now turn to consideration of the various opinions in Dobbs by reference to prudence.

The Prudential Option for Reality over Restraint in Dobbs

The perspective supplied by a focus on the virtue of prudence is helpful for assessing Supreme Court opinions like Dobbs. Questions presented to the Court are filtered in a way that tends to yield for Supreme Court resolution only those federal-law questions that are both significant and unsettled. Served up in petitions for certiorari, the parties and the Court isolate and extract specific questions out of the cases in which they are embedded—cases shaped by justiciability, procedural, and remedial doctrines.[40] This setting calls the particularity of prudential judgment into action. Prudence is about right reason in action. It is the intellectual and moral virtue that “applies universal principles to the particular conclusions of practical matters.”[41] “[I]t belongs to the ruling of prudence to decide in what manner and by what means man shall obtain the mean of reason in his deeds.”[42] The virtue of “prudence, or practical wisdom, [is] the bridge between the moral and intellectual virtues, which brings the power of moral reasoning to its full and proper development.”[43] Prudence is concerned with the concrete and contingent, particular decisions and actions, means rather than ends.[44] “It is exclusively the business of prudence ‘to form a right judgment concerning individual acts, exactly as they are done here and now.’”[45]

It is a common misunderstanding to equate prudence with caution or incrementalism.[46] Caution in relation to which dangers? Incrementalism with respect toward movements in which direction? As previously noted, whether one opinion is narrower or more restrained than another depends on what is being compared. Measured by the distance in which Dobbs moved substantive due process doctrine from the Court’s substantive due process precedents going in, for instance, Alito’s opinion for the Court is broader than Roberts’s and the dissenters’. The same opinion, though, is narrower when measured against the original law of the Fourteenth Amendment as understood by Justice Thomas.

In contrast with Roberts’s appeal to restraint, we can identify reality-based decisiveness as the defining feature of Alito’s judicial prudence in Dobbs. For those who viewed Roe as a landmark, Dobbs’s demolition charge was a blockbuster.[47] Alito did not allow restraint to divert the razing of Roe and Casey in Dobbs. Responding to Roberts’s reliance on restraint, Alito called on the Chief Justice “to face up to the real issue without further delay.”[48] Roberts stood alone in trying to straddle the divide between the majority and dissenting positions by saving more definitive doctrinal determinations for another day. But the lawyers for the parties on both sides urged the Court “either to reaffirm or overrule Roe and Casey.”[49] And the dissenting Justices agreed in insisting on a choice between these options, repeating some version of the word “reaffirm” several times in their joint opinion.[50]

Although his call for restraint attracted none but himself, Roberts nevertheless persisted down that path, restrained neither by the perceptions of his colleagues nor the arguments of the parties. Alito, by contrast, maintained a majority for overruling. Addressing Roberts’s “reasonable opportunity to choose [abortion]” on the substance, Alito noted that the lawyers for the law’s challengers termed Roberts’s proposed approach “completely unworkable,” and “less principled and less workable than viability.”[51] He added that Roberts’s concurrence had “not identified any of the more than 130 amicus briefs filed in this case that advocated its approach. Roberts’s concurrence, Alito concluded, would thus do exactly what it criticizes Roe for doing: pulling ‘out of thin air’ a test that ‘[n]o party or amicus asked the Court to adopt.’”[52]

The law of a particular jurisdiction, such as the law of the United States, has a certain internal organization and unity of its own. Justice Alito understood in Dobbs that he could administer justice only through fidelity both to his role as a federal judge on a multimember appellate court, and also to his best understanding of the demands of federal law as shaped by his predecessors and shapeable by his past, present, and future judicial colleagues. This role fidelity beckoned him to submerge his outlook as an individual Justice into a shared understanding that allowed him and his colleagues to form a majority and to coalesce around an opinion for the Court. In answering to those aspects of his practical reasoning and grasp of governing law that would open the way to a working majority in Dobbs, Justice Alito also came more fully into his own as a prudent jurist.

In St. Thomas Aquinas’s account of the virtues, “[t]he integral parts of a principal thing really are its components—they are the distinct elements that must concur for its perfection or completion. In this sense the wall, roof, and foundations are parts of a house.”[53] St. Thomas identifies eight integral parts of prudence: memory (memoria); understanding or intelligence (intelligentia); docility or teachableness (docilitas); shrewdness (solertia); reason (ratio); foresight (providentia); circumspection (circumspectio); and caution (cautio).[54] These integral parts of prudence provide criteria by which we can assess Justices’ use of the relevant legal materials.

All eight integral parts of prudence work together in deliberation about what is to be done, but a particular contribution that memoria, docilitas, and solertia all make is in their assessment of “what is ‘already’ real, upon things past and present, things and situations which are ‘just so and no different,’ and which in their actuality bear the seal of a certain necessariness.”[55] This is to say that these integral parts of prudence are both present-oriented and backward looking for a judge in just the right way; they inform judicial assessment not only of the present facts but also of the past precedents that must be considered in evaluating the situation.[56]

For St. Thomas, “true-to-being memory” is “the first prerequisite for the perfection of prudence; and indeed this factor is the most imperiled of all.”[57] Imperiled memory can be a peculiar problem at the Supreme Court of the United States because judicial supremacy can operate to falsify the law of the Constitution. A specific danger for memoria is that “at the deepest root of the spiritual-ethical process, . . . the truth of real things will be falsified by the assent or negation of the will.”[58] Insofar as a precedential interpretation of the Constitution is the product of simple judicial will—what Justice White called in his Roe dissent an “exercise of raw judicial power”[59]—then taking it as a representation of the reality of the law of the Constitution is a danger to memoria in the exercise of judicial prudence.

Chief Justice Roberts appears to have succumbed to this danger during the pendency of the Dobbs decision or some time before. The litigation over Texas’s Heartbeat Act, which prohibited abortion after approximately six weeks’ gestational age, may have been a turning point. While Dobbs was pending, the Supreme Court’s consideration of jurisdictional, procedural, and remedial questions related to this Act resulted in two argued cases, United States v. Texas (later dismissed as improvidently granted) and Whole Woman’s Health v. Jackson (a fractured decision that left Texas’s Heartbeat Act untouched).[60] In his solo opinion in Whole Woman’s Health, Roberts asserted that “[t]he clear purpose and actual effect of S.B. 8 [i.e., Texas’s Heartbeat Act] has been to nullify this Court’s rulings.”[61] Issued on December 10, 2021, this opinion came down just nine days after the Court heard oral argument in Dobbs. Given that Roberts believed that “the role of the Supreme Court in our constitutional system is at stake” if a state like Texas could escape judicial censure of a law at odds with then-governing precedent,[62] it is easy to understand why Roberts searched for some ground in Dobbs of keeping up appearances. For Alito and the other Justices in the later Dobbs majority, by contrast, the outward appearances of Roe and Casey were already on their way to being brought back closer to the reality of the Fourteenth Amendment’s requirements.[63]

The Chief Justice’s perception that a state legislature’s enactment of a law inconsistent with existing Supreme Court doctrine amounts to nullification of that doctrine presupposes a conventional form of judicial supremacy.  This conventional judicial supremacy is “the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case.”[64] Although conventional, judicial supremacy of this sort should be more controversial. I have previously contrasted this conventional understanding with judicial departmentalism, a form of bounded judicial supremacy in which “the Constitution means in the judicial department what the Supreme Court says it means in deciding a case.”[65] On this understanding, state and federal officials can act on different understandings of the Constitution than the Supreme Court’s without infidelity to the Constitution itself. These officials are subject to being brought into federal court, though, where the law of judgments, the law of remedies, and the law of precedent all operate to stabilize certain judicial resolutions.

From a judicial departmentalist point of view, entrenched opposition to Roe v. Wade extending over almost half a century need not be understood as attempted nullification. CLE by the sensus fidelium is more like it. In a system of constitutionalism based on popular sovereignty, the sustained efforts of citizens to provoke continued court confrontations can sometimes be best understood as representing the outlook of the constitutionally faithful that the Court can eventually be brought to see the error of its ways and change course.

Chief Justice Roberts’s judicial supremacy prevented him from seeing things this way. The Dobbs dissenters, too. The joint dissent asserted that “[t]he Court reverses course today for one reason and one reason only: because the composition of this Court has changed.”[66] A better alternative, of course, would have been for one or more of the Justices to have changed his or her mind while on the Court.[67]

The back-and-forth of judicial deliberation over cases within a Term, and the serial progression of cases over many Terms, can inform the habitual disposition of docilitas or teachableness. But docilitas does not run deep at One First Street, NE.  For this kind of teachableness to be activated, there must be a kind of open-mindedness, an “ability to take advice, sprung not from any vague ‘modesty,’ but simply from the desire for real understanding (which, however, necessarily includes genuine humility).”[68] When the members of the Supreme Court are epistemically closed off to the influence of the sensus fidelium by judicial supremacy, however, the only way that the Court can change its collective mind is through personnel change.

Even when there has been personnel change, individual Justices may for a variety of reasons balk at rapid doctrinal change. Chief Justice Roberts gestured in this direction when he contended that “[t]he Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases.”[69] Considering how to respond to the invocation of bringing about a “serious jolt” is where solertia can come in. Solertia, or shrewdness, is the “virtue of ‘objectivity in unexpected situations,’” a virtue that allows one confronted with a sudden event to “swiftly, but with open eyes and clear-sighted vision, decide for the good, avoiding the pitfalls of injustice, cowardice, and intemperance.”[70]

The temporal dimension of solertia is swifter than that of docilitas, but both are integral parts of prudence. The Court granted certiorari in Dobbs after an extended period of deliberation and limited the grant to a single question. The internal agenda-setting considerations that guided these actions, though, were upended by the emergence of Texas’s Heartbeat Act and its insertion into the Court’s agenda. By decision time in Dobbs, there was no prudent way to put off for another day direct confrontation with the full extent of the errors of the Roe/Casey regime. To their credit, the Dobbs majority and the Dobbs dissenters both recognized this and acted accordingly. The Chief Justice’s overreliance on tactical shrewdness left him alone and outflanked on both sides.


In overruling Roe and Casey, Justice Alito’s opinion for the Court in Dobbs overcame the greatest error of his predecessor, Associate Justice Harry Blackmun. He did so by answering the arguments of Chief Justice John Roberts with doctrine declared by Roberts’s predecessor, Chief Justice William Rehnquist. Like Blackmun, Alito operated for a time in the shadow of the Chief Justice. Blackmun was dubbed Chief Justice Burger’s “Minnesota Twin” during his appointment process.[71] Just as those Minnesota Twins began by voting more closely together and eventually grew more distant, Alito and Roberts also began by voting together more often before eventually growing more distant.[72] Blackmun called himself “Old Number Three” because he was the President’s third nominee for the seat he occupied on the Court.[73] Alito, too, was the President’s third nominee for the seat he occupied.[74] But the parallels end there. Blackmun’s opinion in Roe was the product of an Associate Justice new to the Court and still under the influence of a Chief Justice he had been closely linked with through his appointment and in his early years on the bench. The decision was imprudent and led to great evils. Alito’s opinion in Dobbs, by contrast, is the product of an Associate Justice with a juridical outlook matured by years of experience in the role and standing apart from the influence of a Chief Justice with whom he had been linked earlier on. It is a prudent decision. Whether it leads to more good depends less now on the federal judiciary than on the use made of the lawmaking authority it returns to those who may rightfully exercise it.


* Knights of Columbus Professor of Law and the Catholic Tradition, Columbus School of Law, The Catholic University of America. Thank you to Joel Alicea, J. Budziszewski, Marc DeGirolami, and Chad Squitieri for helpful comments on earlier versions of this essay.

[1] 142 S.Ct. 2228 (2022).

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

[3] 505 U.S. 833 (1992).

[4] 410 U.S. at 171 (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 222 (1973) (White, J., dissenting).

[5] 505 U.S. at 944 (Rehnquist, C.J., dissenting); id. at 979 (Scalia, J., dissenting).

[6] One wishing to evaluate this assertion can review the briefs and opinions in Dobbs. For an explanation of “the law of the Constitution,” in comparison and contrast with authorized developments, unauthorized developments, and unauthorized departures, see Jeffrey A. Pojanowski & Kevin C. Walsh, Enduring Originalism, 105 Geo. L.J. 97, 142–49 (2016).

[7] Roberts wrote: “Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability.” 142 S.Ct. at 2310 (Roberts, C.J., concurring). Applying this newly described constitutional right to abortion, Chief Justice Roberts pointed out that “Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered ‘late’ to discover a pregnancy. I see no sound basis for questioning the adequacy of that opportunity.” Id. at 2310–11.

[8] Id. at 2311.

[9] Id. at 2283 (majority opinion), quoting Citizens United v. FEC, 558 U.S. 310, 375 (2010) (Roberts, C.J., concurring).

[10] Id. at 2282.

[11] See id. at 2283 (“If we held only that Mississippi’s 15-week rule is constitutional, we would soon be called upon to pass on the constitutionality of a panoply of laws with shorter deadlines or no deadline at all. The ‘measured course’ charted by the concurrence would be fraught with turmoil until the Court answered the question that the concurrence seeks to defer.”)

[12] Id.

[13] Id.

[14] See Whole Woman’s Health v. Jackson, 142 S.Ct. 522 (2021).

[15] 142 S.Ct. at 2316.

[16] The extent of the Court’s arrogation to itself of authority belonging to the people plays an important part in the majority’s stare decisis analysis. In explaining the way in which “Roe was on a collision course with the Constitution from the day it was decided” and that “Casey perpetuated its errors,” Justice Alito notes that “those errors do not concern some arcane corner of the law of little importance to the American people.”142 S.Ct. at 2265. “[T]he Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Id. This preferential option for the people is appropriate for authority rooted in popular sovereignty. See, e.g., J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. 1, 27–29 (2022) (explaining the transmission of authority through the Constitution as justified by popular sovereignty).

[17] Dobbs, 142 S.Ct. at 2310 (Roberts, C.J., concurring).

[18] Thomas Aquinas, Summa Theologiae II-II, Q.47 art. 6 (Fr. Laurence Shapcote, O.P., trans., John Mortensen & Enrique Alarcon, eds., 2012).

[19]  521 U.S. 702.

[20]  539 U.S. 558.

[21]  517 U.S. 620.

[22]  576 U.S. 644.

[23] See Dobbs, 142 S.Ct. at 2277–78 (majority opinion) (“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”).

[24] Brett M. Kavanaugh, From the Bench: The Constitutional Statesmanship of Chief Justice William H. Rehnquist, American Enterprise Institute, 2017 Water Berns Constitution Day Lecture, available at

[25] See Dobbs, 142 S.Ct. at 2300–01 (Thomas, J., concurring) (summarizing originalist analyses from earlier concurrences by Justice Thomas and concluding that “the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, forbid the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”).

[26] See id. at 2301 (suggesting that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell”).

[27] Id. at 2309 (Kavanaugh, J., concurring).

[28] Id. at 2277–78 (majority opinion); id. at 2280.

[29] Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777 (2022).

[30] Id. at 778–81.

[31] See id. at 789 & n.83 (discussing Christopher R. Green, Constitutional Truthmakers, 32 Notre Dame J.L. Ethics & Pub. Pol’y 497, 511–12 (2018)).

[32] Green, supra note 31, at 499, 506.

[33] 142 S.Ct. at 2244–45.

[34] Id. at 2324 (joint dissent) (quoting 142 S.Ct. at 2267). Notably, the Dobbs dissenters agreed with their colleagues in the majority about the absence of a constitutional right to abortion in 1868. See id. at 2323 (“The majority says (and with this much we agree) that the answer to this question is no: In 1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one.”). This datapoint from Dobbs suggests that critics of constitutional originalism like Harvard’s Adrian Vermeule have overstated originalism’s vulnerability to hijacking by “impishly subversive” theories of “living originalism” like that advanced by Yale’s Jack Balkin. See Adrian Vermeule, Common Good Constitutionalism 98 (2022) (asserting that the “‘convergence’ of living constitutionalism and originalism, rightly identified as such by Balkin and others, is like the convergence of a predator and its prey”). Neither was Balkin’s originalist argument for abortion taken seriously enough by any of the Justices in dissent to merit a mention.

[35] Appendix A contains “statutes criminalizing abortion at all stages of pregnancy in the States existing in 1868.” 142 S.Ct. at 2285–96. Appendix B adds “statutes criminalizing abortion at all stages in each of the Territories that became States and in the District of Columbia.” Id. at 2296–300.

[36] Id. at 2323 (joint dissent), quoting id. at 2252–53 (majority opinion).

[37] 142 S.Ct. at 2248 & n.23. Alito’s summary of this history is worth considering in full for what it reveals both about the true state of the history and about the falsity of the dissent’s characterization:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.

Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.

Id. at 2248–49.


[38] See Marc O. DeGirolami, Traditionalism Rising, 23 J. Contemp. Legal Issues (forthcoming 2023) (identifying Justice Alito’s opinion for the Court in Dobbs as evidence that “[c]onstitutional traditionalism is rising”). For additional examples of Alito’s constitutional traditionalism, see Town of Greece v. Galloway, 572 U.S. 565, 599–603 (2014) (Alito, J., concurring) (engaging in traditionalist interpretation); United States v. Alvarez, 567 U.S. 709, 741–42 (2012) (Alito, J., dissenting) (same); Pleasant Grove City v. Summum, 555 U.S. 460, 471–72 (2009) (same).

[39] Jeffrey A. Pojanowski & Kevin C. Walsh, Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule’s New Theory, 98 Notre Dame L. Rev. 403, 455 (2022). Because Dobbs also involved the more particular question of whether to overrule erroneous precedents, the decision “provides a textbook illustration of the difference between (i) answering a question of what the Constitution, correctly understood, provides; and (ii) deciding how to rule in the face of an inconsistency between a correct understanding of the Constitution, on the one hand, and decades-old decisions interpreting the Constitution incorrectly, on the other.” The majority’s understanding of the answer to question (i) informed but did not itself determine its answer to question (ii).

[40] See, e.g., Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 J. Const. L. 1, 16–19 (2016) (describing agenda-setting mechanisms available to the Supreme Court).

[41] Aquinas, supra note 18, at  II-II, Q. 47 art. 6.

[42] Id. at Q. 47 art. 7.

[43] J. Budziszewski, Commentary on Thomas Aquinas’s Virtue Ethics 43 (2017).

[44] See Josef Pieper, Four Cardinal Virtues 32–33 (1990) (“It is not the purpose or the business of the virtue of prudence to discover the goals, or rather the goal, of life, and to determine the fundamental inclinations of the human being. Rather, the purpose of prudence is to determine the proper roads to that goal and the suitable outlet in the here and now for those fundamental inclinations.”).

[45] Id. at 28.

[46] Cf. Jean-Pierre Torrell, O.P., Aquinas’s Summa: Background, Structure, & Reception, trans. Benedict M. Guevin, O.S.B., 44 (Catholic University of America Press 2005) (“Current usage considers prudence to be a timorous attitude and rather negative. But in the Summa, prudence is the virtue of choice and decision, of personal responsibility, of risks consciously taken. It belongs to prudence to bring to conclusion a course of action in a specific, unique, and unrepeatable situation. There is no room for hesitation here”).

[47] See Marc O. DeGirolami & Kevin C. Walsh, A Less Corrupt Term: 2016-2017 Supreme Court Roundup, First Things 39 (October 2017), [] (“[A] blockbuster is not just a TV and film sensation. It is also—and originally—a bomb powerful enough to destroy a neighborhood block. Blockbusters wipe out the existing habitations of civilization so that new structures can replace them.”).

[48] 142 S.Ct. at 2283.

[49] Id. at 2281; see also id. at 2242–43.

[50] See, e.g., id. at 2317, 2321, 2322, 2327, 2333, and 2347 (joint dissent).

[51] Id. at 2281 (majority opinion).

[52] Id., quoting 142 S.Ct. at 2311 (Roberts, C.J., concurring).

[53] Budziszewski, supra note 43, at 6.

[54] Aquinas, supra note 18, at II-II Q. 49 arts.1–8.

[55] Pieper, supra note 44, at 17.

[56] The remaining five integral parts, understanding (intelligentia), reason (ratio), foresight (providentia), circumspection (circumspectio), and caution (cautio) are more present-oriented while making use of insights from past impressions, present considerations, and probabilistic considerations about the future. Informed jurists can make their own comparative assessments of the Alito and Roberts opinions by reference to these parts of prudence. Given the posture of the case and our corrupted constitutional culture, it is understandable that the majority did not address the most important legal reality whose recognition is required for just laws regulating abortion: the Fourteenth Amendment personhood of the unborn. The Court’s overruling of Roe and Casey countered significant constitutional corruption. Yet the constitutional corpus juris is still distended. Across the board of Fourteenth Amendment case law more generally, one might reasonably believe that constitutional law is even more corrupt in 2022 (Dobbs) than in 1992 (Casey) or 1973 (Roe). In a less corrupt constitutional culture, the hallmark of a just and prudent Supreme Court opinion in a future case about abortion law should be reality-based deference rather than reality-based decisiveness. In legal reality, prenatal human persons are persons under the Fourteenth Amendment. In an appropriate future case calling for the evaluation of a state or federal law that protects prenatal persons as persons, the just and prudent stance of the Supreme Court (or any other court evaluating such a law under the Fourteenth Amendment) should be to defer to the enacting government’s recognition of the reality of Fourteenth Amendment personhood. For arguments and evidence relating to prenatal Fourteenth Amendment personhood, see, e.g., John Finnis & Robert P. George, Equal Protection and the Unborn Child: A Dobbs Brief, 45 Harv. J. L. & Pub. Pol’y 927 (2022); Joshua J. Craddock, Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?, 40 Harv. J. L. & Pub. Pol’y 539 (2017); Michael Stokes Paulsen, The Plausibility of Personhood, 74 Ohio St. L.J. 14 (2012).

[57] Pieper, supra note 44, at 15, citing Aquinas, supra note 18, at II-II Q. 49 art. 1.

[58] Id.

[59] Doe v. Bolton, 410 U.S. 179, 222 (1973) (White, J., dissenting).

[60] United States v. Texas, 142 S.Ct. 14 (Mem.) (2021); Whole Woman’s Health v. Jackson, 142 S.Ct. 522 (2021).

[61] Whole Woman’s Health, 142 S.Ct. at 545 (Roberts, C.J., dissenting).

[62] Id.

[63] It is very likely that these Justices had already voted in conference to overrule Roe and Casey completely. Press accounts informed by leaks later reported this, but I will not cite those nor otherwise refer to the shamefully leaked draft opinion for the Court that accompanied these press reports. There is no reason to abet an already sad state of affairs in which curiositas can kill the Court.

[64] See Kevin C. Walsh, Judicial Departmentalism: An Introduction, 58 William & Mary L. Rev. 1713, 1715 (2017) (describing “judicial supremacy” as “the conventional designation for the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case”).

[65] Id.

[66] 142 S.Ct. at 2320 (joint dissent).

[67] Cf. e.g., Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528 (1985) (Justice Blackmun authoring an opinion for the Court overruling an opinion he had joined nine years prior). An example of multiple judges changing course while on the Court can be seen in the shift from Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), to West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

[68] Pieper, supra note 44, at 16.

[69] 142 S.Ct. at 2316 (Roberts, C.J., concurring).

[70] Pieper, supra note 44, at 16.

[71] See Laura Kalman, “Becoming Justice Blackmun”: Deconstructing Harry, N.Y. Times, May 8, 2005, [].

[72] See Adam Liptak, Once Allies, Roberts and Alito Have Taken Divergent Paths, N.Y. Times, May 4, 2022, [].

[73] Kalman, supra note 71.

[74] The first two were John Roberts, who was initially nominated for the vacancy created by Justice O’Connor’s resignation before being nominated for Chief Justice, and Harriet Miers.

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