The Volokh Conspiracy

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New in Newsweek: The Roberts Court is Poised To Unravel Roe v. Wade's Precedential "Paradox"

"On Wednesday, two current members of the Court channelled the logic of the Justices they clerked for."

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Newsweek had published my new essay, titled The Roberts Court is Poised To Unravel Roe v. Wade's Precedential "Paradox."

Here is the introduction:

On Wednesday, the Supreme Court considered the validity of Mississippi's 15-week abortion ban. Yet, there was surprisingly little discussion about whether the 14th Amendment of the Constitution, as it was originally understood, permits the states to prohibit pre-viability abortions. Rather, the bulk of the two-hour proceeding focused on whether the Court should stand by Roe v. Wade, the landmark 1973 precedent that conjured a constitutional right to abortion.

Roe's defenders argue that overruling the precedent would be unpopular, so the Court should maintain this obviously erroneous decision to avoid weakening the Court's public standing. But this position is paradoxical. The Court's legitimacy depends on independent jurists who faithfully decide cases based upon written law. By contrast, judges who base their decisions on popular opinion subvert the Court's legitimacy.

Thankfully, the Roberts Court now seems poised to unravel Roe v. Wade's precedential paradox. After oral arguments, a majority of the justices seem to agree that Roe should be overruled because it is wrong, regardless of how supporters of that decision will respond. The Court, in other words, appears set to decide the case based on the law—and the political chips will fall where they may.

During the argument, Justice Sotomayor asked:

Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

The only stench comes from Justices who base their decisions on "public perception."

In the essay, I observe that Chief Justice Roberts and Justice Barrett channeled the logic of the Justices they clerked for.

NEXT: Dobbs Ain't Over Till It's Over

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  1. Newsweek could use an editor with a stench detector.

    1. People used their stench detectors to avoid whatever garbage it was that you published, so perhaps your stench detector needs to be recalibrated.

      Poor SL, failed publisher.

    2. Since they haven't published anything by you, I'd say their stench detectors are working at least that well.

    3. If they had one of those, they could never publish any articles in favor of the "Living Constitution" "judges", so they'll never do that

  2. Rehnquist dissented in Roe, but in Washington v. Glucksburg he listed abortion among recognized substantive due process rights.

  3. Blackman is very upset that the Supreme Court re-wrote the Constitution to include an individual right to abortion.

    And yet, I don't recall much outrage from Blackman about all the zillions of times the Supreme Court has re-written the Constitution to increase government power.

    Selective outrage from a non-libertarian (writing, for some reason, on an "often libertarian" blog on a libertarian website).

    1. Blackman is very upset that the Supreme Court re-wrote the Constitution to include an individual right to abortion.

      As he should be. Roe was bad law, based on pulling something out of the ether, and has been since the decision was written.

      And yet, I don't recall much outrage from Blackman about all the zillions of times the Supreme Court has re-written the Constitution to increase government power.

      Josh Blackman writes about a lot of things; abortion is only one of them. Maybe you ought to read some of his other work.

      Selective outrage from a non-libertarian (writing, for some reason, on an "often libertarian" blog on a libertarian website).

      Because Reason editors are pro abortion, it doesn't follow that all libertarians have to be pro abortion. There is a rather large contingent among libertarians that believe that abortion is wrong and goes against individualist philosophy.

      1. I like the terms Pro Life and Pro Death. Because that is actually the discussion.

        1. Not really. You have simply presumed the definition of life (and death).

          1. How about fetal demise? Induced fetal demise?

            Will that do?

            Also, for consistency, being for capital punishment falls under pro-death. Conversely, pro life is consistent with opposition to both abortion and state-sponsored killing of captives.

    2. Perhaps you need to learn the difference between "often" and "always".

    3. "And yet, I don't recall much outrage from Blackman about all the zillions of times the Supreme Court has re-written the Constitution to increase government power."

      Really? Got some of these "zillions" of examples?

  4. The only stench comes from Justices who base their decisions on "public perception."

    Ouch. That's gonna leave a mark.

    1. Of course, it was the "wise" Latina he was referring to.

      1. Well she is a complete dope. Wise Latina seems like satire.

  5. I did not hear "After oral arguments, a majority of the justices seem to agree that Roe should be overruled because it is wrong"

    What I heard was that the majority of the court was struggling with stare decisis doctrine (Barrett: "But, in thinking about stare decisis, which is obviously the core of this case...").

    Stare Decisis doctrine, not Roe, is the core of the case. The bar to overturning precedent should be very high, even for a wrongly decided decision. All 9 justices agree with that proposition, you can hear it in the questions. Given how divisive Heller and other precedents are, I think the bar should be extremely high.

    The majority of the court seemed to agree Roe iswrong, but also the majority of the court was concerned that the high bar to overturn even a wrongly decided precedent was not met.* Justice Barrett in particular was concerned with one of the prongs in Casey regarding public perception. Caseyreaffirmed Roe, so really the court would have to find Casey's stare decisis analysis egregiously wrong.

    What I expect will happen is that the court will split the difference. Reaffirm Roe on stare decisis grounds, but find that the viability standard was dicta, and put forth some sort of undue burden test. The Court will say the state cannot put an undue burden on abortion in the first trimester (12-14 weeks). That would allow them to affirm the Mississippi law (15 weeks), but strike the Texas law (8 weeks).

    * For example Roberts says: "I just want to focus on stare decisis for a little bit. I found my colleague, Justice Breyer's, comments quite compelling."

    1. This is what I was about to say. Josh's essay is fundamentally dishonest. I often disagree with him, but usually it takes someone smarter or better versed in the law than me to point out his occasional mendacity. This time it was pretty obvious.

      1. Well tbf to Prof Blackman, nearly every article I have read concludes something to the effect that a majority of justices seem poised to overrule Roe and Casey. Roberts does not like to overrule precedent, and Barrett seemed right with him on stare decisis concerns. My feeling also is that Roberts will stay in the majority so he can write the opinion, or assign it to Barrett, so he stays in control of it. If Roberts writes the opinion, what opinion will he write? It will probably split the difference between the sides.

        That said, I think that oral arguments are something of a Rorschach test.

    2. Simply put, they wouldn't be struggling with stare decisis doctrine if they thought Roe shouldn't be overruled because it was right. Stare decisis only becomes central if they've already decided that there's reason to overrule Roe, and are questioning whether there's enough reason to justify doing it.

      1. You have the order wrong, Brett.
        You don't need to arrive at a firm conclusion either way on the merits before you decide stare applies.

        Read the language of Casey to see how this analysis can be quite fact-based, and yet different from a merits finding.

        1. Bzzt, wrong

          1: Casey is bullshit by lying hacks explaining why they're going to ignore the US Constitution and replace it with their personal desires. Reading it isn't going to teach you anything of value

          2: If the decision is correct, then you don't have to care about stare decisis, you simply go with the fact that the decision was correct. So yes, you only look at stare decisis if you think the decision was wrong.

          3: If you're a lawyer arguing a case, you say "I think the precedent was correct, but if it wasn't correct, I think it shoudl be maintained via stare decisis becase ..."

          But if you're a member of SCOTUS, if the precedent was correct you say that

    3. dwb I agree with your post completely, with the small exception that I'm not sure Justice Thomas agrees with the proposition that the bar for overturning precedent should be very high.

    4. The majority of the court seemed to agree Roe iswrong, but also the majority of the court was concerned that the high bar to overturn even a wrongly decided precedent was not met.

      Isn't amazing how low that "high bar" is whenever the Left wants to rewrite the US Constitution to push their latest stinking desire?

    5. TOTAL CONTROL OVER FRAMING

      For a court of last resort (directly accountable to no one) the core of the case is whatever the court says it is.

      Same for invidual members, though not necessarily binding.

  6. Is it really necessary to overturn Roe? You can still uphold the laws in question and leave Roe in place. Roe specifically allows state restrictions on abortions.

    It seems like any restriction up until or a little after birth is the "end of women's rights" somehow.

  7. But Thomas is correct there is no right to abortion the constitution. So 10A applies. Case dismissed

    1. Why doesn't 9A apply?

  8. So, what was Barret's first question?

  9. QUESTION: So, what was Barrett's first question?

    JUSTICE BARRETT: Would a decision in
    your favor call any of the questions -- any of
    the cases, sorry, that Justice Sotomayor is
    identifying into question?

    MR. STEWART: No, Your Honor, I -- I
    think for a couple reasons.

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