This week we address the dissent in the Dobbs case.
We explained last week why dissents can be so important. Eventually the reasoning of a dissent can become the common understanding. More on that in a minute.
Breyer, Sotomayor, and Kagan list MANY reasons for their dissent, a number of which have been circulated among popular discourse.
The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases. Ante, at 79. That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a pro-cedure. Above all others, women lacking financial re-sources will suffer from today’s decision.
In other words, this decision is going to affect poor women disproportionately. This is, at its heart, a classist decision.
They are very concerned about other rights, such as those guaranteed by the cases Thomas feels should be re-addressed, and how they will be affected by this decision. They claim that either the Court doesn’t believe their own reasoning here, or they don’t believe in those rights there. It can’t be both ways.
They argue that the original Roe decision struck a balance between competing interests, and this decision does away with that balance.
The Court therefore struck a balance, turning on the stage of the pregnancy at which the abortion would occur. The Court explained that early on, a woman’s choice must prevail, but that “at some point the state interests” become “dominant.” Id., at 155. It then set some guideposts. In the first trimester of pregnancy, the State could not inter-fere at all with the decision to terminate a pregnancy. At any time after that point, the State could regulate to protect the pregnant woman’s health, such as by insisting that abortion providers and facilities meet safety requirements. And after the fetus’s viability—the point when the fetus “has the capability of meaningful life outside the mother’s womb”—the State could ban abortions, except when neces-sary to preserve the woman’s life or health.
This decision takes away that balance and gives all the power to one side again.
The dissent provides a different history of reproductive law that shows this IS a part of our history and tradition. This goes to show that depending on history for legal proof is tenuous at best. There are always many manifestations of history and there is even debate among the experts as to which is the most accurate.
The dissenters admit that this was not a right initially considered in the original Constitution. No form of reproductive right or protection is mentioned in the original set of laws of America. But, they argue, the original writers were all men in a time when women weren’t considered anything close to equal citizens. It never would have occurred to any of the writers of the Constitution to give women a second thought or their rights because women didn’t HAVE any. They do, now. The law has to be considered with women in mind.
Breyer, Sotomayor, and Kagan also comment on the complete disregard for stare decisis.
By overruling Roe, Casey, and more than 20 cases reaf-firming or applying the constitutional right to abortion, the majority abandons stare decisis, a principle central to the rule of law. “Stare decisis” means “to stand by things de-cided.” Black’s Law Dictionary 1696 (11th ed. 2019). Black-stone called it the “established rule to abide by former prec-edents.” 1 Blackstone 69. Stare decisis “promotes the evenhanded, predictable, and consistent development of le-gal principles.” Payne, 501 U. S., at 827. It maintains a stability that allows people to order their lives under the law. See H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 568–569 (1994).
Stare decisis also “contributes to the integrity of our con-stitutional system of government” by ensuring that deci-sions “are founded in the law rather than in the proclivities of individuals.” Vasquez, 474 U. S., at 265. As Hamilton wrote: It “avoid[s] an arbitrary discretion in the courts.”
The Federalist No. 78, p. 529 (J. Cooke ed. 1961) (A. Ham-ilton). And as Blackstone said before him: It “keep[s] the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” 1 Blackstone 69. The “glory” of our legal system is that it “gives preference to precedent ra- ther than . . . jurists.” H. Humble, Departure From Prece-dent, 19 Mich. L. Rev. 608, 614 (1921). That is why, the story goes, Chief Justice John Marshall donned a plain black robe when he swore the oath of office. That act per-sonified an American tradition. Judges’ personal prefer-ences do not make law; rather, the law speaks through them.
The dissenters argue that this decision will make for nigh impossible legal entanglements between the states. They write,
Finally, the majority’s ruling today invites a host of ques-tions about interstate conflicts. See supra, at 3; see gener-ally D. Cohen, G. Donley, & R. Rebouché, The New Abortion Battleground, 123 Colum. L. Rev. (forthcoming 2023), https://ssrn.com/abstract=4032931. Can a State bar women from traveling to another State to obtain an abortion? Can a State prohibit advertising out-of-state abortions or help-ing women get to out-of-state providers? Can a State inter-fere with the mailing of drugs used for medication abor-tions? The Constitution protects travel and speech and in-terstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming “interjurisdictional abortion wars.” Id., at ___ (draft, at 1).
But ultimately, the end result, they say, is this:
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.
Breyer, Sotomayor, and Kagan’s dissent is long, and occasionally barbed. They make no bones about the fact that they think this is a tragic decision that will be disastrous for women.
But let’s turn away from the text of the dissent for a moment and think about the potential of the dissent itself. In order to do that I want to talk for a moment about the rhetorical situation.
In 1966 Lloyd F. Bitzer proposed the concept of the rhetorical situation in a lecture at Cornell University, which was ultimately published in 1968. Bitzer began by describing what he wanted to know when he asked for a rhetorical situation. He wanted to know the nature of the contexts in which a rhetor creates rhetorical discourse. For Bitzer, context was all-important. He was very clear, in fact, that it is the situation itself which calls discourse into existence. Bitzer contends that in the best of all possible worlds there would be communication, but no rhetoric, since exigencies, or imperfections that call for a response, would not arise. But the world invites changes, and rhetors respond in kind. In fact, his definition of the rhetorical situation hinged on the idea that a “work is rhetorical because it is a response to a situation of a certain kind.” That being said, the work of rhetoric is “pragmatic.” It ultimately aims “to produce action or change in the world; it performs some task. In short, rhetoric is a mode of altering reality, not by the direct application of energy to objects, but by the creation of discourse which changes reality through the mediation of thought and action….In this sense rhetoric is always persuasive.” But rhetoric must be understood as a product of a specific condition or a situation which invites the production of that rhetoric. In those situations, the rhetor feels “obliged” to respond. All of this culminates in the conclusion that “not the rhetor and not the persuasive intent, but the situation is the source and ground of rhetorical activity.” So, the rhetorical situation comes to a tripartite condition. “The first is the exigence, the second and third are elements of the complex, namely the audience to be constrained in decision and action, and the constraints which influence the rhetor and can be brought to bear upon the audience.” The constraints can be objective or artistic. They direct the rhetor in her response. They are the elements that produce the particular rhetoric that is called for. Exigence and constraints work together to create a particular response for an audience that all work together to exact change in order for a situation or a text to be rhetorical.
On the surface, the theory of the rhetorical situation seems a useful construct for scholars of legal rhetoric. Legal rhetoric at the level of the Supreme Court is a response to a particular instance that is calling for some kind of change or policy. There is clear exigence. A law has been broken or someone has brought a suit that requires opinions which apply or interpret the law so that we, the public, and our legislators can understand the law and its application. And in the case of judiciary rhetoric, the notion of constraints seems a useful application as well. The doctrine of stare decisis is fundamental to judicial rhetoric and is based on the notion that precedent should guide legal reasoning. Stare decisis is the legal principle of determining points in litigation in accordance with precedent. In other words, the decisions that have come before guide the case before the Court at the moment. The constraints are built into the process of legal reasoning. But the evolution of the rhetorical situation has illuminated complications to this application, especially in light of dissents, concurrances, and negotiation of constraints.
In the summer of 1973, Richard E. Vatz, published an essay in response to Bitzer challenging his premises and positing a different understanding of the rhetorical situation. He summarized Bitzer’s position as “meaning resides in events.” Vatz, however, emphasizes that “the facts or events communicated to us are choices, by our sources of information” (emphasis by the author). The choice of what is related to the audience is a matter of arbitration by the rhetor. The “situation” is translated into meaning, which is a creative and interpretive act. Events become meaningful to an audience only through their depiction by the rhetor. Audiences do not know “the reality” of a situation so much as they know a translation of a situation. If one views meaning as a product of rhetoric, then the study of how, why, and by whom symbols create reality is of paramount concern. Rhetoric, in this understanding, creates a hierarchy of realities, which privileges the study of rhetoric in an effort to understand those very hierarchies. In short, it is not the situation which creates meaning, but it is the rhetor who creates meaning by creating the realities that the audience will understand.
Vatz’s description of the rhetorical situation privileges the choices of the rhetor as opposed to finding meaning in context that a rhetor is “obliged” to respond to. Vatz’s response set the stage for an on-going debate about the nature of the rhetorical situation, and the agency of the rhetor. Scholars who placed meaning in the context of rhetoric favored Bitzer’s original explanation, but those who believed that a situation is created by the rhetor pointed to Vatz’s definition. A scholar’s preference indicated how she or he tended to define rhetoric and its role in public discourse in general.
Roe should have provided the constraints for this decision. It is the context in which the Court must deliberate and ultimately decide on the cases brought before them. A divergent view of the rhetorical situation, however, may lead a justice to operate outside the bounds of these constraints. Or, to emphasize a different set of constraints over these. Either choice indicates a great deal of agency for the rhetor. It also indicates a desire to create in the opinion a rhetorical piece that arranges and interprets information in a particular, argumentative way. The act of choosing and rejecting constraints indicates that the rhetor is purposeful. The rhetor is willful and has goals for her or his particular piece of rhetoric. It is meant to be convincing. They are interpretive works, intended to take situations and realities and translate them for an audience, with the intent to persuade.
The doctrine of stare decisis, or precedent, is a powerful rhetorical constraint in judicial rhetoric. In Bitzer’s description of the rhetorical situation, a rhetor would be bound by such a constraint. The context, the constraints, and the exigence would not leave room for a rejection of previous law. For Alito, history and tradition are more acceptable constraints. His belief that he can choose and apply his own constraints at will to create an argument, (or as Vatz would observe, a reality) is a completely different rhetorical situation than imagined by Bitzer. It is a situation much more in line with that described by Vatz who believes that the rhetorical situation is a product of the rhetor. This creates an opportunity for the rhetor to creatively interpret as she or he sees fit, and for an argument like a dissent, or a concurrence, which may not have immediate material effects, to be categorized as rhetorical.
So these arguments are incredibly important in terms of what rhetoric, or what reality, really, is being called into being. The majority opinion relies on completely different restraints, and therefore creates an entirely different reality than the dissent. The dissent relies on precedent and a completely different set of laws and understanding of history, and even comes to a different understanding of the world entirely. These are two completely different rhetorical situations because of the choices made by the rhetors. These are creative and interpretive acts. One would think because of stare decisis the context would define the situation, but Alito shows us that rhetors can reject that constraint in favor of another. And the dissent is crafted out of a set of constraints wholly different from the majority. History will be the judge of which of these sets of creative choices rules.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.