In its strong lead editorial today, the Wall Street Journal editorial board reiterates its call for the Supreme Court to use the pending case of Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and thus allow abortion law to “sort itself out democratically.” In the course of its argument, the WSJ speculates that Chief Justice Roberts might instead be trying “to find a middle way” and to “to pull[] another Justice to his side,” and thus prevent a majority ruling that would overturn Roe.
I remain hopeful that the WSJ’s speculation is unsound. It’s one thing for the Chief to have explored the possibility of a “middle way” at oral argument. It would be quite another thing for him to pretend to have found a path that doesn’t exist. In my judgment, the WSJ is far too generous in suggesting that such a path “might be explainable with some legal dexterity”—unless, that is, dexterity is a gentle euphemism for rank sophistry.
As my own WSJ op-ed pointed out on the day of oral argument in Dobbs, the Chief’s actual record—including the principles that he has spelled out on when bad precedent should be overruled and his broader jurisprudential commitment to deference to the political branches—dictates that he should vote to overturn Roe. So do his proper concerns for the Court’s institutional legitimacy:
The immediate aftermath of the overruling of Roe might well be messy and contentious. But unless concerns over the court’s legitimacy are mere camouflage for the court’s self-aggrandizement, a sound institutionalism must also respect the legitimacy of the state legislatures that our Constitution leaves with primary authority over abortion policy.
By contrast, if the Chief were to concoct an implausible middle way, he would discredit himself and invite endless bullying. Even worse, if he were somehow to pull a justice away from a 5-justice majority that is ready to overturn Roe, he would, as the WSJ points out, merely “prolong the Court’s abortion agony.”
There will be no better occasion than Dobbs to inter Roe. Let’s hope that the Chief proves all his doubters wrong.