The Volokh Conspiracy

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Rehnquist, Roberts, and Roe

|The Volokh Conspiracy |

My colleague Rick Garnett passed along these thoughts on Dobbs, which I'm posting with his permission.

The oral arguments, at the Supreme Court, in the Dobbs case, made me think about my old boss, Chief Justice William Rehnquist. He was the Supreme Court's junior member when Roe v. Wade was decided—and, two decades later, the Chief Justice when Roe's "essential holding" was salvaged in Planned Parenthood v. Casey. His role differed in those cases, but his position remained the same. Roe, Rehnquist said in 1973, "partakes more of judicial legislation" than constitutional interpretation. And attempts to save its "essential holding," he said in his 1992 Casey dissent, require "an entirely new method of analysis, without any roots in constitutional law."

Rehnquist's constancy was not mere stubbornness. He thought that the Court's "legitimacy" was not "served by such an effort" to engage in "judicial legislation" to save an old precedent. Making up new rules would create "self-engendered difficulties." The Court could avoid those difficulties, said Rehnquist, by disavowing Roe outright—thus taking the view, "as the Court surely did in both Brown and West Coast Hotel, that the Court's legitimacy is enhanced by faithful interpretation of the Constitution."

Even as the justices explored whether there is an available middle ground, one that might make it possible to preserve precedent, it is all the more clear that Rehnquist's position is the stronger one.

In our constitutional system, overruling precedent is often thought of as a last resort. So, it is unsurprising that at Wednesday's oral argument in Dobbs, Chief Justice Roberts seemed to be exploring the possibility of a middle ground. The Chief Justice recognized that speculations about an unborn child's "viability" make little sense as a constitutional line. But, he asked, is there some other line the Court could draw that would continue to treat abortion as a constitutional right, while at the same time loosening the standard of judicial review of abortion regulations?

At every turn, however, the lawyers representing the abortion providers and the Biden Administration cut the legs out from under any mediating effort. The providers' lawyer, when asked by Justice Gorsuch whether Casey's "undue burden" standard would be a workable solution if untethered from the viability line, answered forthrightly: no, "it would not be workable." And the Solicitor General of the United States was likewise pressed to identify an administrable line other than viability, but offered none. Meanwhile, Mississippi's Solicitor General explained the state's position that only returning the abortion issue to the people would ultimately fix the constitutional problem, give sufficient guidance to the lower courts, and create the breathing space necessary for stable, democratic consequences to be hashed out and take root.

It is not a surprise that efforts to find a middle ground came up empty. Although Mississippi stuck by its alternative argument that its pre-viability abortion prohibition isn't an "undue burden" under Casey, that argument and ones like it have been rejected by every lower court to have considered them, including by judges (like the Fifth Circuit's James Ho in Dobbs itself) whom no one would mistake for being eager to read the Court's abortion precedents any more broadly than they must. That's because, as Sherif Girgis has explained, if Roe and Casey are read fairly, the "right" they recognize is a right to an abortion "at any given point in pregnancy" up to viability—and that's a right with which a 15-week prohibition like Mississippi's simply can't be reconciled.

Of course, Roe and Casey could always be read unfairly—altered post hoc to mean something that the Court deciding them never could have understood itself to have said. But once the Court starts rewriting its precedents, it's no longer deferring to them at all. As Chief Justice Roberts himself memorably put it, "[s]tare decisis is a doctrine of preservation, not of transformation." So, while narrow decisions are often preferable to broad ones, a court's decision ultimately must be not only "narrow," but "right."

Abortion is one of the most contentious issues our society faces, and it is appropriate for the justices to consider carefully whether or not to correct the error that the Court made in Roe. But, as oral argument revealed, if principle rather than politics is to carry the day, the only stable ground available is the one articulated by Justice Kavanaugh: reading the Constitution to be "scrupulously neutral on the question of abortion." In that post-Roe world, "the Constitution is neither pro-life nor pro-choice on the question of abortion," but rather leaves the issue for the people and their elected representatives.

This is exactly the answer championed for decades by Chief Justice Rehnquist. And Rehnquist's sound caution against "self-engendered difficulties" rings just as true in Dobbs as it did in Casey. Attempting again to salvage some "essential holding" from Roe would not protect the Court's institutional legitimacy. To the contrary, as Rehnquist said, by responding to political pressure by adhering to Roe "at all costs" the Court would again seem to be "retreating under fire," thus damaging its legitimacy.

The sure path to institutional legitimacy instead lies in vindicating the judicial role specified by the Constitution: interpreting the law, not making it. And doing so here yields a clear answer: the Constitution the people ratified simply does not accord special protection to abortion.

The wisdom of Chief Justice Rehnquist's position is borne out by another observation the justices should keep in mind: When the Court steps outside the bounds of the Constitution, it hurts not just the Court's institutional legitimacy, but also the American people themselves. Like the Court's other grave constitutional mistakes, Roe has not only harmed our Constitution and laws, it has also led to untold human suffering. It's time for the Court to stop inflicting injury on both the American body politic and the American people themselves by ending its 50-year experiment in managing the people's regulation of abortion.