What Do Bruen, Dobbs, and SFFA Have In Common?

Randy Barnett and I are nearing completion of the Fifth Edition of our Constitutional Law casebook. We are still waiting for the last batch of cases from June to finalize a few chapters. Our last edition was published in 2021. Needless to say, a lot has changed, though much of the book remains the same. Still, this experience has reinforced the difference between how students are taught constitutional law, and how practitioners see it on the ground.

In the classroom, we read the landmark decisions that changed the law of the land: Bruen laid down a rigorous test to review gun control laws; Dobbs returned the abortion issue to the states; Students for Fair Admission all-but eliminated affirmative action; and so on. Students who read these decisions from 2022 and 2023 might get the sense that constitutional law changed overnight with respect to guns, abortion, and racial preferences. The reality, however, is far different.

Barely a year after Bruen, Rahimi walked back the “analogue” test. Gun laws have remained virtually unchanged. Blue states have allowed shall-issue carry regimes with many obstructions and burdens. Moreover, the Supreme Court has turned away every single case about the scope of sensitive places and the types of arms covered by the Second Amendment. The two cases argued this term (Hemani and Wolford) present fringe issues that will matter little to gun owners.

Ditto for affirmative action. In the wake of SFFA, the Court turned away Boston Parent Coalition for Academic Excellence Corp. v. The School Committee For the City of Boston (2024). This case cleanly presented a challenge to an affirmative action policy at an elite public school that was evading SFFA. Justices Thomas and Alito would have granted cert . Justices Gorsuch, Kavanaugh, and Barrett were silent. As documented in a new Manhattan Institute report, the rates of racial minorities admitted to elite colleges has remained roughly the same, despite doomsday predictions from Harvard and other groups. Remember Justice Kagan’s hypothetical about what would happen if zero black students attended Harvard? To my mind, these numbers suggest that universities developed clever ways to evade SFFA, though the data is not clear. I doubt the Supreme Court will re-enter this fray.

The abortion issues is a bit more complex, but the reality is the same. After Dobbs, doctors began sending mifepristone to red states, and blue states enacted shield laws to immunize these doctors. Dobbs held that abortion would now be an issue for the states to decide, however pro-life states are helpless to stop doctors from flooding their states with abortion pills. Indeed, there are more abortions now in red states than before Dobbs. The shield law issue has not yet reached the Court, but I suspect the Court will stay out of it. And, just this evening, the Court once again copped out on mifepristone.

The court, by an ostensible 7-2 vote, granted a stay of the Fifth Circuit in Danco Laboratories v. Louisiana. There is no explanation at all. I am old enough to remember when the Court’s liberals complained that unexplained stays should not be granted. But here, Justices Sotomayor, Kagan, and Jackson dutifully joined the order. As did Justices Gorsuch, Kavanaugh, and Barrett. In 2023, I wrote that Justice Barrett only grants relief on the emergency docket when the Fifth Circuit does something conservative. Well, the trend continues.

Why did the Court grant a stay of the reasoned decision by Judge Duncan?  Was it due to a lack of state standing? Did the Court find that Louisiana is not likely to win on the merits? Perhaps the Court found that Danco prevailed on the equities to distribute a product that is illegal? Who knows? The Court said nothing at all.

Of course, this might be a rare case where all three Trump appointees voted in the exact fashion Trump wanted. The President clearly does not want to block the shipment of mifepristone. He has been very clear on this from the outset. There have been no Comstock Act prosecutions. The FDA has refused to revisit the Biden-era REMS. The FDA didn’t even file a brief in this case! Trump was hoping that the Supreme Court would bail him out, and they did.

The only Justices willing to say anything about the matter were Justices Thomas and Alito. Thomas made the obvious point: the distribution of mifepristone is illegal. How can Danco and Genbiopro “be irreparably harmed by a court order that makes it more difficult for them to commit crimes”? Imagine a gun manufacturer sought an injunction to allow the shipment of their products into a blue state, where it was illegal. Does anyone think the equities would tip in favor of those shipping firearms? Of course not. And really, no need to imagine. I represented Defense Distributed, which was enjoined from putting files on the internet that might be downloaded by someone in a blue states. Do you think the federal judge in Washington was troubled that Defense Distributed lost profits? Come on. Get real.

Justice Alito, as usual, said what needed to be said. Blue states are flouting Dobbs and the Supreme Court will do nothing to stop it.

The Court’s unreasoned order granting stays in this case is remarkable. What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215 (2022), which restored the right of each State to decide how to regulate abortions within its borders. Some States responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other States, including Louisiana, made abortion illegal except in narrow circumstances. See, e.g., La. Rev. Stat. Ann. §40.1061 et seq. But Louisiana’s efforts have been thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana’s and seek to undermine their enforcement.

In the past, Justice Kennedy prevent Louisiana from banning abortions within its borders. Now, the government of New York can impose the same undue burden on state sovereignty. Has anything really changed since Dobbs? Justice Kavanaugh’s Dobbs concurrence reached out to decide the issue of whether women could travel from red states to blue states. But he missed the most obvious response: mail order abortions. Why travel when you can get the pills sent through the Postal Service?

As for the equities, Louisiana simply seeks to put Danco in the same position it was before the 2023 REMs. They were profitable under the old regime, and can remain profitable.

I will continue to teach Bruen, SFFA, and Dobbs. But students should know the Justices really didn’t mean to enforce any of these rulings.

I think we can soon add Kennedy v. Bremerton to this list. Judge Duncan’s opinion for the en banc Fifth Circuit faithfully applied the history and tradition test to the Texas Ten Commandments Law. I think the Chief Justice will write the majority opinion, and hold, “Well, we really didn’t mean what we said.” As I said above, the casebook changes, but constitutional law remains largely the same.