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The Next Democratic Supreme Court Nominee


There is indeed an excellent case that it should be Patricia Millett:

Over the past five days, Judge Patricia Millett performed the judicial equivalent of a triple axel. Millett, who sits on the U.S. Court of Appeals for the District of Columbia Circuit, first dissented from a decision by a three-judge panel delaying an undocumented minor’s abortion. Her dissent was so powerful that when the full D.C. Circuit eventually reversed the panel’s ruling, it did nothing more than explain in a single paragraph that Millett had it right. The judge then took a well-earned victory lap, penning a trenchant concurrence that excoriated her conservative colleague’s anti-abortion, anti-immigrant casuistry. Her brilliant performance secured a vulnerable young woman’s right to bodily autonomy. It should also earn Millett a spot at the very top of the Supreme Court shortlist the next time a Democratic president gets tasked with making a selection.


The dissent came down on Friday evening. On Sunday, armed with Millett’s opinion, the ACLU asked the full D.C. Circuit to vacate the panel decision and allow Doe to get an abortion. Two days later, the court rescinded the panel’s order by a 6–3 vote and ruled in Doe’s favor. In an extraordinary and unusual move, the court did not issue a majority opinion. Instead, it simply wrote that it agreed with Millett. In just four days, her opinion had been transformed from a dissent into the law.

But Millett wasn’t finished. Kavanaugh, clearly furious about the sudden reversal of fortune, dissented from Tuesday’s order, complaining that the government had a substantial interest in “seeking to place the minor in a better place when deciding” whether “to make a major life decision.” Millett retorted that “J.D. has already made her decision, and neither the government nor the dissenting opinion identifies a constitutionally sufficient justification …  for requiring J.D. to wait for what may or may not be a better environment.”

She also scorned Kavanaugh’s paternalistic suggestion that, with a “support network of friends and family,” Doe might back out of the abortion. She pointed out that Doe had already received judicial bypass, as required by Texas law, to terminate her pregnancy. “Unfortunately, the central reason for the bypass process,” Millett wrote, “is that pregnant girls and women too often find themselves [in] dangerous situations … in which those networks have broken down.” Condescending judges like Kavanaugh do not get to force these women to chat with their “network” to delay “the exercise of reproductive choice.” (Henderson, too, wrote a dissent to Tuesday’s ruling, arguing that Doe does not qualify as a “person” under the Due Process Clause. Millett chose not to re-engage with this outrageously wrongheaded, Dred Scott–esque assertion, which she had already countered in her first dissent.)

Not a dime’s worth of difference between her and Neil Gorsuch, really.

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