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The One Thing the Dissenting Justices Could Do to Save Roe

Slate logo Slate 6/1/2022 Ryan H. Nelson
Members of the Supreme Court pose for a group photo at the Supreme Court. Erin Schaff-Pool/Getty Images © Provided by Slate Members of the Supreme Court pose for a group photo at the Supreme Court. Erin Schaff-Pool/Getty Images

Five of the nine Supreme Court justices are prepared to overturn Roe v. Wade and wrest from hundreds of millions of Americans the fundamental right to access abortion. The four justices in the minority can and must stop that from happening. Chief Justice John Roberts, along with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, should recuse themselves in Dobbs v. Jackson Women’s Health Organization and deny the Supreme Court a quorum, preventing the end of Roe. 

Federal law and the Supreme Court’s own rules establish the quorum of justices necessary to do business at six.  Put another way, unless at least six justices agree to hear a case, the Supreme Court cannot act.  As such, a denial of quorum would deprive the presumptive five-justice majority in Dobbs from adopting Justice Samuel Alito’s leaked draft majority opinion, leaving Roe intact for now.

Deprivations of quorum are not novel.  For instance, in 2008, the Supreme Court agreed to hear American Isuzu Motors, Inc. v. Ntsebeza, a case concerning a group of businesses accused of maintaining apartheid in South Africa.  However, because so many large corporations were named defendants, four justices recused themselves due to conflicts of interest.  As a result, the Supreme Court lacked a quorum and the five remaining justices were unable to rule on the case.

In such situations federal law states that a majority of the remaining justices can either affirm the judgment of the lower court or, if they believe the lack of quorum is temporary, hold the case until the next term and decide it then.  Accordingly, a majority of the five qualified justices in Ntsebeza voted to affirm the appeals court’s judgment, presumably because they did not foresee their fellow justices’ conflicts of interest abating.

Moreover, justices can recuse themselves from any case for any reason.  To that end, while federal law compels recusal in the face of certain conflicts of interest, it imposes no requirement that unconflicted justices hear a case.  Indeed, despite some lower courts imposing a “duty to sit” on federal judges—a duty that Chief Justice William Rehnquist once thought applicable to Supreme Court justices—never has a majority of the Supreme Court held that its justices must decide a case where they are qualified to do so.

For example, despite his qualification to hear cases, Justice Robert Jackson famously took a leave of absence from the Supreme Court from 1945 to 1946 to serve as chief prosecutor at the Nuremberg Trials, leaving eight justices to keep the court operating in his absence.  Furthermore, to the extent a “duty to sit” ever applied to Supreme Court justices, Congress abolished it in 1974 to relieve federal judges from having to hear cases where they were arguably disqualified due to conflicts of interest, thus “enhanc[ing] public confidence in the impartiality of the judicial system.” One consequence of this legislation was an increase in the independence of the judiciary, giving judges the unchecked discretion to recuse themselves whenever they please, so long as federal law does not compel them to do so. Today, the four justices who will ostensibly comprise the Dobbs minority can recuse themselves despite their having no apparent conflict of interest.

Justice and the institutional legitimacy of the Supreme Court demands that these justices do so.  No government should force pregnant people to give birth against their will.  Plus, if Roe falls, countless other fundamental rights will be on the chopping block. And as Justice Sotomayor portended at oral argument, overturning Roe would undermine the Republic itself by fomenting an enduring “stench” that “the Constitution and its reading are just political acts.”  In contrast, saving Roe would signal that, at least sometimes, this court still upholds the rule of law, politics be damned.  A court whose legitimacy is on life support is better than a court whose legitimacy has been aborted.  For all these reasons, it is vital to prevent Roe’s downfall by any lawful means.

Here in Texas, we are familiar with such procedural maneuvers.  Last summer, Democratic legislators fled the state to temporarily divest the Republican-led Texas House of Representatives of the quorum needed to pass a bill restricting voting rights.  The gambit worked for several weeks until the legislators inevitably returned home.  The difference here is that four justices could deny the Supreme Court a quorum to hear abortion cases permanently.

Although this tactic would be wholly novel in the judiciary, there is also nothing new about a minority of officials in one branch of our federal government thwarting majority rule.  Americans are undoubtedly familiar with the filibuster—the arcane rule where a minority of senators can block debate and prevent a majority of senators from voting on a bill.  Depriving the Supreme Court of a quorum is a similar tactic. These kinds of undemocratic moves are unfortunately the only weapons we have against a political minority who have cemented their outsized influence in undemocratic ways.

So, to the four justices writing your dissents in Dobbs: stop writing. Take evasive action. Recuse yourselves. Denying quorum to avoid constitutional calamity may set a troubling precedent, but at least the Supreme Court would survive, as would the fundamental rights of millions upon millions of Americans. Watching your colleagues destroy a core constitutional right would be unimaginable. But watching them do so when you could have stopped them would be unforgivable.


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