Season 2, Episode 21 (Show 73): Is There a Dobbs Deal?

May 25, 2022

The leaked Dobbs draft opinion was authored by Justice Alito.  Is that the end of the story?  We explore a framework, and a coalition, that could conceivably form the basis of a very different opinion.

CLE credit is available by visiting podcast.njsba.com after listening.

We’ve spent the last few episodes examining the leaked draft opinion in Dobbs.  But this isn’t yet the opinion of the Court.  We look at past “stolen” decisions, and discuss how and why it could happen again that the Court seemed to be going one way and wound up heading in a surprising direction.  Which Justices might form a different five?  What could bring them together?  Could it make a difference to women, and to the nation?  What can each “side” offer the other?  Listen to this creative and most important legal and political discussion. 

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visitingpodcast.njsba.com after listening.)

Show Notes:

What Roe v Wade Should Have Said - Amar Chapter

Professor Amar offers his “opinion” in a chapter in Jack Balkin’s 2005 book, What Roe v. Wade Should Have Said.

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America's Lived Constitution - Yale Law Journal

From the Yale Law Journal, 120:1734 (2011), “America’s Lived Constitution,” which became a chapter in America’s Unwritten Constitution; excerpted in this week’s podcast.

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How to Defend Obamacare - Slate (2012)

Professor Amar’s open letter to the Supreme Court Justices, after the oral argument in the Sebelius (Obamacare) case, in the March 29, 2012 issue of Slate.s

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Geduldig v. Aiello (1973)

Geduldig, Director, Department Of Human Resources Development v. Aiello Et Al.m 417 U.S. 484 (1974), a notorious case wherein the Supreme Court ruled that pregnancy-based laws were not implicated in sex discrimination claims and were therefore not entitled to heightened scrutiny.  We discuss.

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After abortion decision leak, what can the chief justice do now? - Slate

Professor Ira (Chip) Lupu writes in a recent issue of Slate putting forth the notion that a non-Alito-led coalition might emerge and “steal” the Dobbs opinion.  Professor Lupu foresees a different coalition than is discussed in our podcast, but his idea echoes Professor Amar’s thesis in this week’s podcast.

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