A New Day at the Supreme Court

By Dov Katzenstein

In what was one of its most watched and anticipated decisions in modern history, the Supreme Court last Friday struck down Roe v. Wade erasing the precedent which claimed the Constitution contained a right to perform procedures that ended the lives of unborn children.

The ruling, which was the subject of an unprecedented leak nearly two months before its release, sparked an immediate and vehement reaction in political and activist circles, with many on the right celebrating the achievement of a half century-long goal to open options for states to protect the unborn, and many on the left decrying what they portrayed as a draconian curtailment of individual rights.

It has also set off debates in many Republican-dominated states as how governments plan to apply their newfound freedoms and to what extent the controversial procedures will be banned or more strictly regulated. Democratic states are already in the midst of a trend that began during the Trump presidency of expanding the timeframe when procedures are legally available, and are now debating having taxpayers foot the bill for transporting citizens from more restrictive states to undergo the procedures there.

As resistance to overturning Roe has long been a passionate cause celebre on the left, Democrats are trying to keep the Court’s decision front and center, hoping that rallying calls to address the matter with legislation and a Senate majority that can clear the way for more liberal-leaning judges, will motivate their voter base and deliver better than expected election results this coming fall.
In the center of this multifold swirl were the opinions of the Court and dissenters, which sharpened present divide among the justices over judicial theory, their view of social issues, and the role of the Court in American life.

The Majority

The majority opinion, penned by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, dealt thoroughly in its 78 pages with a wide range of issues but was unequivocable in its theme that the time was long overdue to jettison Roe.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” wrote Justice Alito. “Far from bringing about a national settlement of the … issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue … to the people’s elected representatives.”

That is precisely what will happen now as a result of Dobbs, the present case. With Roe out of the way, for the first time in almost 50 years, state governments will be at full liberty to restrict or ban the practice. It will no doubt set off fierce debates and could take a central role in state elections for years to come.
In Roe, decided in 1973, and another case, Casey, decided in 1992, majorities on the Supreme Court held that a Constitutional right existed to provide procedures that end the lives of unborn children, relying largely on a doctrine embraced by liberal jurists that the 14th Amendment’s right to due process also includes a long list of other “rights” not explicitly discussed in the Constitution. One of these, the right of “privacy,” denied states governments the ability to restrict the procedures prior to when the unborn child is deemed “feasible” to live on its own.

At issue presently before the Court was a Mississippi law that pushed back that line to an earlier period. However, Mississippi did not simply ask the Court to decide the constitutionality of its law.
With a solid conservative majority on the Court for the first time since modern concepts of right and left came into focus in America, and with the encouragement of many legal and advocacy groups, Mississippi argued that the justices should take the opportunity to overturn Roe and the standard it established.
Last week’s decision did just that and with it achieved a victory that many conservatives have worked towards for decades, but which seemed a faraway fantasy until a combination of factors allowed former President Donald Trump to appoint three conservative-leaning justices to the Court, tipping its balance.
Central to the Court’s opinion was its rejection of the idea that a right to the procedures is found within the 14th Amendment or any other part of the Constitution.

“The Constitution makes no reference to [the procedures], and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty,’” says the opinion. “In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.”

Justice Alito spends many pages arguing that a right to the procedures cannot qualify as “deeply rooted” in America’s history, as prior to 1973 they were illegal in most states.

The Justice’s push back against the doctrine known as “substantive due process.” Their close hewing to the Constitution’s text in such a monumental case is not only a victory for the pro-life movement; it is an equally defining moment for judicial originalism, the theory that the Constitution should be understood based on the way it was understood by the public at the time it was adopted — in the case of the 14th Amendment, 1868. The originalist method is most widely associated with the late Justice Antonin Scalia and has come to define America’s ascendant conservative legal movement.

The second major issue that the Court’s opinion contends with is the doctrine of stare decisis, that the Court’s well-established precedents should be regarded as authoritative except in extreme circumstances.
Justice Alito noted that many of the Court’s most consequential decisions, including Brown v. Board of Education, which ended legal segregation, overturned prior rulings.

“Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong,” he said. “When that happens, stare decisis is not a straitjacket.”

How far?

The Court’s three liberal-leaning Justices, in their sharply worded dissent and some in political and media circles, raised alarm that the Court’s rejection of “substantive due process” in Dobbs endangers several other “rights” established by past rulings, as the doctrine has been used repeatedly to convey Constitutional legitimacy on progressive social values, most recently in its 2015 Obergefell ruling.
“No one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone,” said the dissent jointly signed by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor.

Dissenters buttressed their warning with what was one of their many attacks against the majority’s originalist approach. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
Justice Thomas was the only member of the majority who followed the reasoning of his dissenting colleagues writing in a concurring opinion that, indeed, in “future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.
“Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity,” he wrote.
Yet, the majority spent several pages explaining why its decision to abandon precedent and attack the doctrine previously endorsed by liberal-leaning majorities on the Court was limited to the case at hand and did not have any bearing on other established decisions, saying on the point, “It is hard to see how we could be clearer.”

A central point to the distinction the majority makes is the fact that in prior relevant cases, the liberal doctrine was applied to the “rights” of individuals free of a direct tradeoff damaging other parties. Justice Alito reasoned that Dobbs does not “cast doubt on precedents” that do not involve the procedures “because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’”

The Dissenters

The dissenters decry Dobbs’ outcome as a crushing blow to what they see as a fundamental right, but in doing so they also lambast the method the majority took in arriving at its conclusion. They tag originalism as an approach that harnesses judges not only to the text of the Constitutional framers but to their mores, which they view as outdated and biased.

“Those responsible for the original Constitution, including the 14th Amendment, did not perceive women as equals and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship,” they wrote. “Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differently. It has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static.”

The dissent also takes to task the majority’s argument, one made by legal conservatives for decades, that overturning Roe returns the Court to a “neutral” place regarding the controversial procedures by leaving the moral judgments on how and whether to permit them to elected officials that reflect the will of voters.
“We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition,” they wrote.

While the line resonates of a certain radicalism, in principle it is a point that judges and legal scholars of all stripes accept, i.e. that the duty of the Court is to establish what the Constitution establishes as a “right,” therefore nullifying government moves that contradict them. Witness to this point was the high court’s recent ruling nixing some of New York’s gun laws on the basis that they contradict the Second Amendment’s guarantee of the “right to bear arms.” What those rights are, obviously, is at the core of clashes over that case, Dobbs, and many others.

The Chief Justice’s Spurned Plea

A lonely voice on the case was that of Chief Justice John Roberts, whose call for a moderate and incremental approach to the issue found no allies on either ideological branch of the Court. His approach would have been to uphold Mississippi’s law while leaving Roe in place and leaving broader questions for “another day.”

“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” wrote Justice Roberts. “Surely, we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized but also expressly reaffirmed, applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”

Most notable about the fact that the Chief Justice’s approach found no takers, particularly among his fellow conservatives, is that for decades those on the right were harshly critical of liberally inclined judges who, as they saw it, “legislated from the bench,” taking rulings much further than the cases before them demanded.

Justice Roberts’ Court has largely been guided by an incremental approach, one that has also delivered many conservative policy victories, albeit more slowly and with greater acceptance than in the present case. Its recent ruling favoring government-sponsored tuition relief for religious schools was the culmination of three Roberts court cases, the first of which, in 2017, was decided by a margin of 7-2. Its decision in Fulton last year, which ruled that the city of Philadelphia was in the wrong for banning Catholic charities from involvement in foster and adoptive care due to the denomination’s rejection of progressive social values, was unanimous, a direct result of the fact that the Court agreed to rule on narrow grounds.

Justice Alito’s opinion, however, rejects the Chief Justice’s call for a moderate approach, arguing that in light of the havoc Roe and Casey have wrought, delaying broader questions for a later but inevitable time is not advantageous.

“In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” wrote the Court. “The turmoil wrought by Roe and Casey would be prolonged. It is far better — for this Court and the country — to face up to the real issue without further delay.”