It’s easy enough for a district judge to stand alone in Amarillo or Lubbock. But it is quite difficult for a judge to maroon himself on a deserted island along the Acela Corridor. Still, judge Colin Coller-Cotelli somehow managed that Crusoean feat.
Judge Kolar-Cotelli is presiding over the case against the anti-abortion advocates. and post-Dobbs, the defendants had the audacity to say that “the Constitution does not grant a right to abortion.” Rightly, Supreme Court precedent is a bad move for the state. spontaneouslyThe court ordered briefing on “whether any other provision of the Constitution may provide a right to abortion as a substantive matter, which may or may not be addressed. Dobbssuch as that Dobbs “There may or may not be a final pronouncement on this issue, leaving an open question.” It’s a move an eager law clerk cooks up, but a judge is supposed to veto. Not here.
you see Dobbs There was a 14th Amendment case. but Dobbs Did not address the 13th Amendment. The majority opinion did not answer that the ban on abortion is “involuntary servitude.” So, this issue was left open! Clearly, Justice Alito had an invisible elephant hiding in an invisible mousehole.
Judge Kolar-Cotelli explained:
Note that this Court is bound by the holding, and considering the Supreme Court’s long-standing admonition against over-applying its own precedents, it is entirely possible That court might stand Dobbs Some other provisions of the Constitution provided for the right to access reproductive services that The issue has been raised. But it was not picked up.
I guess there is something to that possible. Maybe Justice Thomas wrote a secret nod to the Thirteenth Amendment and extended it. (Josh Gerstein, go look it up!) But this analysis isn’t supposed to treat lower court judges as Supreme Court precedent. Consider a simple example. Imagine if a district court judge, pre-Dobbs Supplementary briefing is requested on whether the preamble to the Constitution protects fetal personhood rights. After all, it is “safe[s] Bless us and our freedom SuccessorNothing in the text says that a successor must be born. and no Ro or Casey Cleverly address this issue. How would an order like this fly from Victoria or Wichita Falls?
Judge Kolar-Cotelli framed her order in terms of minimalism, but she is inviting parties to present arguments that could overturn Supreme Court precedent. And what in the end? This constitutional issue has almost no bearing on the case. The judge is simply riffing on an accurate statement from the defendant’s brief. Are we really going to get a full constitutional interpretation on involuntary servitude in a mandate?
If the Thirteenth Amendment actually protects the right to abortion Dobbs Must be canceled and why stop there? What about the Free Exercise Clause and RFRA? These issues are being litigated, and have not been settled by Dobbs. Hell, has everyone forgotten about the Ninth Amendment? That provision is actually quoted Ro, and I don’t think Justice Alito affirmatively rejected Justice Blackmun’s pearls of wisdom. Another invisible elephant!
I think there is some 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 overturning Supreme Court precedent.
For decades, conservative lower-court judges dutifully and grudgingly followed suit. Ro And Casey For decades. Don’t forget that Judge Ho joined the Fifth Circuit opinion that ruled in favor of the Jackson Women’s Health Organization. But what we see here is massive resistance DobbsMuch like we are seeing massive resistance the bridgeAnd will soon see massive resistance Students for fair admission. Judges don’t like these rulings, so they will be read as narrowly as humanly possible to maintain the status quo before 2022.
For those curious, Texas district court judges in the Fifth Circuit have a nearly perfect approval rate. I think that the redacted DC Circuit would not commit to an order that protects Thirteenth Amendment abortion rights. And if this case slips upstairs, it’s a GVR.