Bench Memos

Law & the Courts

Dobbs: The Court’s Historic Moment (Part 3)

An anti-abortion demonstrator holds a replica of a human fetus as demonstrators gather outside the U.S. Supreme Court building in Washington, D.C., June 29, 2020. (Carlos Barria/Reuters)

For all the talk about stare decisis surrounding the Dobbs case, the factor that is not in fact a part of the Court’s long-standing stare decisis test is the one that gets the most discussion in press and by the Left. It was a key theme of the Casey joint opinion: What would overruling Roe do to the legitimacy of the Court as an institution?

Making a decision on grounds that are not part of the Court’s normal test of precedent can be chalked up to the abortion distortion. But since it is likely to come up again, let us consider the question: Looking back at the last 50 years, how did reaffirming the greatest “raw judicial power” grab (to quote Justice White’s 1973 dissent) in the Court’s history work out from an “institutional legitimacy” standpoint? Nobody respects the three Casey joint-opinion authors for that decision. Their rewrite in Casey did not improve the Court’s credibility or make it look any less political. It did not settle the law. It did not remotely fix the judicial-nomination process. It just made the justices look as if they thought they were platonic guardians from on high while others saw them as — to borrow a phrase from Justices Stephen Breyer and Elena Kagan — “junior varsity politicians.” It is simply not their job to decide the best policy for the nation.

Even at its greatest level of generality, Casey fails, as exemplified by the following passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Those grandiose words, which might fit well in a philosophy lecture or transcendental meditation, were instead properly destined for ridicule from Justice Scalia, who called it the “sweet-mystery-of-life passage,” to lower-court judges and legal commentators of many stripes. Ridicule may be too light a punishment for a passage designed to obfuscate that the case’s subject matter was what so many Americans believe is an act of violence.

The opening sentence of the joint opinion — “Liberty finds no refuge in a jurisprudence of doubt” — unintentionally contained its own refutation as we are now approaching three decades of Casey’s jurisprudence of doubt. Unfortunately, more enduring than any observation from the joint opinion is Scalia’s dissenting observation: “The Imperial Judiciary lives.”

The Court will run into criticism no matter what it does in this case. That dynamic is characteristic of every momentous historical decision a leader has ever made. We have already seen the Left call every decision it disagrees with a political one. But that is just name-calling. As Justice Barrett recently said, “We need to evaluate what the court is doing on its own terms.” Casey fails not because of what one political faction or another had to say about it in its immediate aftermath, but because it is untenable on its own terms, as indigestible a mess for lower courts now as it was during the 1990s.

If the Court makes up a new abortion standard rather than ruling on the basis of the Constitution, they will actually be acting as politicians. And they will be seen as such. This prediction is straightforward, because it already happened on this very issue in the past. For the sake of its own integrity, the most desirable outcome is for the Court to overturn Roe/Casey and to move the policy debate regarding abortion to the political branches, where the Constitution puts it.

For years, Court-watchers have had occasion to predict whether one group of justices or another would be the ones to bring the day of reckoning for Roe. All the members of the Roe Court are gone. Only Justice Thomas remains from the Casey Court, as ardent a dissenter in abortion cases as his late colleague, Justice Scalia, was. There is a sense that the Roberts Court now faces the historic moment that has been waiting nearly half a century. How will the justices respond? This is a case in which finding the right answer is easy. Getting it done as a judicial decision requires extra fortitude — and in that respect will therefore be harder. But in the long run, not doing it will be the hardest of all — on the Court and the country.

This is the final item in a three-part series. You can read the first part here and the second part here

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