Predicting Justice Barrett’s First Question in Dobbs
Justice Barrett has something of a tell. In at least two big cases, her first question in oral arguments gives away her bottom line.
For example, her first question for the petitioners in Fulton v. City of Philadelphia suggested a hesitancy to overrule Smith:
Good morning, Ms. Windham. So you just kind of indicated that — you know, that maybe Smith shouldn’t have been applied here, and you argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if you’re right about that, why should we even entertain the question whether to overrule Smith?
Lo and behold, Justice Barrett did not reach the question about whether Smith should be overruled, because the Philadelphia policy was not neutral and gener
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