It’s easy for a district judge to be alone in Amarillo or Lubbock. But it is quite difficult for the judge to stand on a desert island along the Acela corridor. Still, judge Colleen Kollar-Kotelly somehow managed that Crusoan endeavor.
Judge Kollar-Kotelly presides over the prosecution of abortion advocates. And post-Dobbs, the defendants had the audacity to declare that “the Constitution does not grant the right to abortion.” Bad move to accurately cite Supreme Court precedent. Spontaneouslythe court ordered a briefing on whether “any other provision of the Constitution could grant the right to abortion as an original matter, which may or may not be dealt with in Dobbsso Dobbs may or may not be the final statement on the matter, leaving the question open.” This is the kind of move an eager law clerk comes up with, but a judge should veto. Not here.
you see Dobbs was the case of the 14th Amendment. But Dobbs did not deal with the 13th amendment. The majority opinion did not address whether the abortion restriction constituted “involuntary servitude.” So this question remained open! Allegedly, Justice Alito hid an invisible elephant in a non-existent mouse hole.
Judge Kollar-Kotelly explained:
Bearing in mind that this Court is bound by positions, and considering the long-standing warning of the Supreme Court against the excessive application of its own precedent, it is fully possible which the Court could take into account Dobbs that some other provision of the Constitution provided for the right to access reproductive services that the question was raised. However, it was not raised.
I guess it’s anything possible. Maybe Justice Thomas wrote a secret concurrence about the Thirteenth Amendment and threw it away. (Josh Gerstein, go find it!) But this analysis is not how lower court judges should treat Supreme Court precedent. Consider a simple example. Imagine that a district court judge, pre-Dobbs requested additional information on whether the Preamble to the Constitution protects the right to fetal personality. After all, it is “safe”.[s] The blessings of freedom to us and ours Progeny.” Nothing in the text says that offspring must be born. And neither Roe deer nor Casey openly addressed this issue. How would such an order fly from Victoria or Wichita Falls?
Judge Kollar-Kotelly framed her order in a minimalist way, but she invites the parties to present arguments that could overturn the Supreme Court’s precedent. And with what goal? This constitutional question has almost no bearing on the case. The judge simply falls on the correct statement from the defendant’s submission. Are we really going to get the entire constitutional exegesis of involuntary servitude in the saying?
If the Thirteenth Amendment actually protected the right to abortion, then Dobbs must be overridden. And why stop there? What about the Free Exercise Clause and RFRA? These issues are in court, and have not been resolved Dobbs. Hell, everyone’s forgetting about the Ninth Amendment? That provision is actually quoted in Roe deer, and I don’t think Justice Alito affirmatively rejected those pearls of wisdom from Justice Blackmun. Another invisible elephant!
I think there is room for lower court judges to refuse to extend Supreme Court precedent to new contexts, but judges cannot take the Supreme Court’s silence as a basis for undermining Supreme Court precedent.
For decades, conservative lower court judges dutifully and reluctantly followed them Roe deer and Casey for decades. Don’t forget that Judge Ho joined the Fifth Circuit’s opinion that ruled in favor of Jackson’s women’s health organization. But what we see here is tremendous resistance Dobbsmuch like we see tremendous resistance the bridgeand soon we will see a huge resistance to Students for fair admission. Judges don’t like these rulings, so they will be read as narrowly as possible to maintain the status quo before 2022.
For those curious, Texas district court judges have a nearly perfect approval rate in the fifth circuit court. I don’t think even the Redifed DC Circuit would uphold an order finding that the Thirteenth Amendment protects the right to an abortion. And if this case slips up, it’s GVR.