Initially, three things need to be plain:
(1) I do not write to take a substantive position one way or another on abortion regulation by the state or federal government.
(2) I intend no criticism of the individual justices. Moreover, I intend no substantive criticism of the Supreme Court’s abortion jurisprudence.
(3) In the fall of 2011, I recused myself from handling any more civil cases involving the regulation of abortion. See General Order No. 2011-10 (D. Neb.) (Kopf, J., recusing and explaining basis for recusal),
Turning to the meat of this post, I was the trial judge in both of the Carhart cases that ended up in the Supreme Court. Compare Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998) (Nebraska’s partial-birth abortion statute was unconstitutional), aff’d, 192 F.3d 1142 (8th Cir. 1999), aff’d, Stenberg v. Carhart, 530 U.S. 914 (2000) with Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004) (the federal partial-birth abortion statute was unconstitutional), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005), rev’d, Gonzales v. Carhart, 550 U.S. 124 (2007).
Even though there was very little difference in the cases from my perspective, the Court affirmed the first decision but reversed the second. To say that I was perplexed is an understatement. It is that perplexity that prompts this post.
At the heart of abortion litigation is the Supreme Court’s “undue burden” standard. See Planned Parenthood v. Casey, 505 U.S. 833, 845-46, 877, 879 (1992). The Supreme Court’s test asks whether, prior to viability, the regulation unduly burdens a woman’s decision to terminate her pregnancy. According to the Court, unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden. Assume that as a trial judge I am only interested in knowing how to understand and then apply the “undue burden” standard. Assume further that I approach that task with no conscious bias. How do I go about my task?
I could and should use precedent to try to parse the meaning of “undue burden.” See Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial-Birth Abortion and Word Games–A Response to Steve Grasz and Other Conservatives, 35 Creighton L. Rev. 11 (2002). But what if the intellectual giants of the lower federal courts can’t agree on what the words mean. See, e.g., Hope Clinic v. Ryan, 195 F.3d 857, 861, 876 (7th Cir. 1999), cert. granted and judgment vacated by 530 U.S. 914 (2000) (Judge Easterbrook wrote the opinion upholding efforts to ban the practice and Judge Posner wrote a stinging dissent). When that happens, the federal trial judge is in a real pickle.
Now, this is not a “poor me” lament. I get paid the same whether my decisions are affirmed or reversed. Moreover, you can’t become or long survive as a federal trial judge without a strong ego. (Insert the snark of your choice!) The law is necessarily ambiguous. It is ever-changing. Blah, blah, blah.
So, why do I write this post? Intending no effrontery, I urge the justices to write their opinions with the role of the federal trial judge more keenly in mind because it is in everyone’s interest to do so. And, I offer what to many may seem a simple-minded way of going about doing so.
When writing opinions, the justices would do well to ask: In subsequent cases, is the federal trial judge to behave more like the Herculean judge or more like the judge-as-umpire when applying our decision? Of course, the more ambiguous the role definition the less likely it is that the federal trial judge will get it right. Everyone’s interests are served by providing greater precision.
If the justices want to be more explicit about role definitions for trial judges, then, and as odd as it may seem, they might also try writing jury instructions after reading their opinions and before they are published. (To be clear, I know that juries typically have no role in abortion cases.) We communicate to lay people all sorts of tricky legal stuff in jury instructions. We define conspiracies and motivating factors . In so doing, our language sometimes gives juries broad latitude and other times very little latitude. While writing jury instructions may seem pedestrian, I have often found that you cannot fully understand the substantive law until you can put it into jury instructions. The private and in-chambers exercise of writing jury instructions as a test for opinion clarity would serve to focus the justices on the important work of assigning more precise role definitions for federal trial judges.
I appreciate that the justices have many tasks to accomplish when writing opinions and many of those tasks are very difficult and not apparent to the rest of us. See, e.g., Jeffrey Toobin, The Nine, pp. 48-59 (Doubleday 2007) (discussing the interplay between the justices that resulted in the Casey opinion and the “undue burden” test). Nonetheless, providing the federal trial judge with a clear role definition ought to be at the forefront.*
*Until the appointment of Justice Sotomayor in 2009, no justice has had experience as a federal trial judge since Justice Whittaker ended his tenure in 1962.