The New Supreme Court Paradigm: Legal Research Post-Roe
Barbara Engstrom, Executive Director, King County Law Library
Many people have used the term consequential to describe the October 2021 U.S. Supreme Court term. Somehow, the word “consequential” doesn’t seem adequate to describe the seismic shift in jurisprudence that just happened and seems destined to continue. I find myself pondering the myriad ways in which the decisions of this term will impact how we argue, teach, and research the law going forward.
Even studying for the July bar exam was impacted. In late June, Washington along with several state bar associations (and the National Conference of State Bar Examiners) felt compelled to issue statements to offset panic in July test takers that the raft of new U.S. Supreme Court decisions upending laws affecting reproductive rights, religion, gun restrictions, voting rights, criminal, and administrative law would not be tested.[1] A prospective bar exam taker used a Calvinball analogy to compare the questions and answers in his test prep materials to the what the answers will be after this term. “There’s a bit from the comic strip Calvin and Hobbes that’s recently entered the legal lexicon: Calvinball. Calvinball is a game that has no actual rules; in the comic, Calvin and Hobbes just make up the rules as they play.”[2]
Law professors who have relied on essentially the same syllabi for years will have a busy summer figuring out how and when to cover the new decisions in their courses and what to say about precedent. Legal research will be impacted in many ways as well, including the following:
Keeping Closer Tabs on Other States’ Laws
One facet of some of the new and pending abortion bans in various states is the attempt to restrict a citizen’s ability to travel to a state where abortion is legal. Justice Kavanaugh addressed this in his concurrence, writing: “Second, as I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”[3] As noted in the New York Times, “Rory Little, a law professor at the University of California’s Hastings College of the Law, noted a bit of irony on Twitter: “Justice Kavanaugh votes to overrule abortion protections because not specifically mentioned in the Constitution — and then his concurrence relies on an unwritten ‘constitutional right to interstate travel.’” The Times further observes, “Justice Kavanaugh, for his part, cited no precedents or constitutional provisions for his statement that a state may not ‘bar a resident of that state from traveling to another state to obtain an abortion.’”[4]
Indeed, many states where abortion is protected quickly moved to safeguard persons traveling to obtain abortions. Soon after Dobbs was handed down, Governor Inslee issued a directive to the Washington State Patrol to refuse cooperation with investigations related to abortion and is preparing to take “additional steps to further protect patients from investigative activities by agencies and vigilantes in anti-choice states.”[5]
Notwithstanding Justice Kavanaugh’s assurance, Dobbs portends protracted legal battles between states. For legal research, this underscores the importance of comparative statutory research. Hein Online’s National Survey of State Laws database is an excellent tool to find legislative surveys comparing similarities and differences in statutory provisions among states. Hein updated their “hot button issues” (abortion, gun control, and voter law) to conform with the recent decisions. Hein Online is available for in-house use at the law library. Another valuable resource is the National Conference of State Legislatures website. https://www.ncsl.org/ The NCSL website is particularly helpful for tracking pending legislation. Hein Online also has the Subject Compilation of State Laws which indexes law reviews and other scholarly works that include comparative legislative surveys. With the lag in publication time for law reviews, this source might be best for historical comparisons for the time being. Westlaw and Lexis both have 50 state statutory and regulatory surveys – though they should also be scrutinized for currency. In addition to these traditional resources, newspapers and advocacy organizations can be helpful for finding current laws in a comparative context.
Ancient History
Another thread running through this term’s cases was the emphasis on history and tradition as a lodestar for Constitutional interpretation. In Dobbs, Justice Alito writes, “Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’ The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition.”[6] Leslie Reagan, a professor of history and law, contends that the court gets the history egregiously wrong. “Alito explicitly dismisses the distinction between ending a pregnancy before or after quickening, a distinction that my research has found was critical to the way American women and American physicians traditionally thought about pregnancy. In early America as in early modern England, abortion before “quickening” was legal under common law and widely accepted in practice.”[7]
The court’s emphasis on history and tradition was not limited to Dobbs. It ran through the New York gun law case[8] as well as the Bremerton praying football coach case.[9] In fact, the words “history” and “tradition” were respectively used 67 and 47 times in Dobbs, and 95 and 51 times in NY Rifle & Gun Club.[10]
Since the court appears to be headed to all originalism, all the time, it’s a good idea to sharpen those multi-disciplinary historical research skills. While Google Scholar https://scholar.google.com/ can be a good starting point, both Seattle Public Library and the King County Library System have deeper access to current and historical academic scholarship on their Academic OneFile and ProQuest databases. The advantage of using these databases over Google Scholar is that you will be able to take advantage of search features such as advanced Boolean searching, abstract searches, and date range limiters. JSTOR is an excellent database for deep dives into historical journals. While academic libraries are the primary subscribers to JSTOR, early journal content – published prior to the last 95 years in the U.S. and in the last 143 years internationally is available via JSTOR’s Open Access collection. https://about.jstor.org/oa-and-free/ That time frame would seem to hit the sweet spot for the current Supreme Court.
The Straight Story
There has been much discussion over whether Justice Gorsuch mischaracterized the facts in Kennedy (the praying football coach case). The heated interchange between Gorsuch and Justice Sotomayor in the main opinion and the dissent echoed the same argument that occurred in the court of appeals. In essence, the dispute is whether Kennedy’s prayers were personal, quiet, and private or whether there was implicit pressure on the team to join in the prayers. Sotomayor took the unusual step of including a photograph of one of the crowed prayer circles in her dissent. Seattle Times columnist Danny Westneat questioned the veracity of the majority’s narrative based on reporting that the Times had done on Kennedy in a 2015 article titled Football Coach Vows to Pray. “It describes — in Kennedy’s own words — how he was inspired to start holding midfield prayers with students after he saw an evangelical Christian movie called ‘Facing the Giants,’ in which a losing team finds God and goes on to win the state championship. Kennedy ‘has held his postgame ritual at midfield after each game for a motivational talk and prayer ever since,’ the story recounted. By doing so, Kennedy said he is ‘helping these kids be better people.’”[11] The Football Coach Vows to Pray article ended up in the court record.
Contemporaneous news accounts can be powerful for establishing factual narratives. While Google searches are a good starting point, more targeted news searching can be done in the aforementioned Seattle Public Library and King County Library System’s Academic OneFile and ProQuest databases. Both SPL and KCLS have specific databases to access both the current and historical New York Times and Seattle Times and aggregator databases such as National Newspapers (including Chicago Tribune, Los Angeles Times, Wall Street Journal, and Washington Post) and Washington State Newspapers (over 130 sources across Washington State) that allow for deep dives into content with advanced Boolean searching. These databases are great way to access news articles that are otherwise hidden behind paywalls.
Have Questions??
If you have questions about any of the resources discussed in this article or would like more research tips, feel free to contact the King County Law Library at services@kcll.org.
[1] See WSBA Announcement: Examinees taking the NCBE-developed July 2022 MBE, MPT, and MEE will not be required to be familiar with this term’s U.S. Supreme Court decisions. Available at https://admissions.wsba.org/allnews.action
[2] See Aaron Regunberg, How the Calvinball Supreme Court Upended the Bar Exam, The New Republic July 12, 2022 Available at: https://newrepublic.com/article/167032/dobbs-roe-bar-exam-calvinball
[3] Dobbs v. Jackson Women’s Health Org.,___U.S. ____ No. 19-1392 (2022). Kavanaugh Concurrence at 11. https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
[4] See Adam Liptak, The Right to Travel in a Post-Roe World, New York Times (July 11, 2022) available at https://www.nytimes.com/2022/07/11/us/politics/the-right-to-travel-in-a-post-roe-world.html
[5] See Press Release: Inslee Issues Directive Prohibiting State Law Enforcement Cooperation with Abortion-Related Investigations (June 30, 2022) https://www.governor.wa.gov/news-media/inslee-issues-directive-prohibiting-state-law-enforcement-cooperation-abortion-related
[6] Dobbs v. Jackson Women’s Health Org.,___U.S. ____ No. 19-1392 (2022) at 2
[7] See Leslie J. Reagan (Professor of History and Law at the University of Illinois, Urbana-Champaign) What Alito Gets Wrong About the History of Abortion in America, Politico (June 2, 2022) available at https://www.politico.com/news/magazine/2022/06/02/alitos-anti-roe-argument-wrong-00036174 (Reagan also explains “quickening” in the historical context. “If it were possible to eavesdrop on conversations among women and some doctors in early America, you might overhear the phrase ‘bringing on the menses.’ If a woman didn’t menstruate when expected, she was considered to be sick and action was required to bring her back to health. Women who had ‘a common cold’ — a euphemism for ‘obstructed’ menses — used a variety of methods, teas and concoctions to bring ‘their menses back.’ In other words, returning menstruation to its normal cycle was within the purview of a woman’s own self-health care and was not regulated by the state until after ‘quickening’ — the moment during a pregnancy when a woman could feel a fetus kick and recognized a life ‘stirring’ within her. Quickening occurred between the fourth and sixth month of pregnancy. Only after quickening was an induced miscarriage, an abortion, considered immoral and banned by law.”)
[8] “To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” New York State Rifle & Pistol Association Inc. v. Bruen .,___U.S. ____ No. 20-843 (June 23, 2022) at 2
[9] “An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.” Kennedy v. Bremerton School District .,___U.S. ____ No. 21-418 (June 27, 2022) at 4
[10] Joe Brandt, The Supreme Court Keeps Citing ‘History and Tradition.’ Whose History? NBC LXNews (June 24, 2022) https://www.lx.com/politics/the-supreme-court-keeps-citing-history-and-tradition-whose-history/54733/
[11] See Danny Westneat, The Myth at the Heart of the Praying Bremerton Coach Case (June 29, 2022) available at https://www.seattletimes.com/seattle-news/politics/the-myth-at-the-heart-of-the-praying-bremerton-coach-case/
