The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Overruling Roe Would Extinguish A Judicially Created Right, But Would Restore The People's "Precious Right To Govern Themselves"

There is not a single definition of liberty.


This morning I appeared on C-SPAN Washington Journal to talk about Dobbs. I was asked to explain how the Supreme Court could overrule precedent, and extinguish a judicially-created constitutional right.

This question has been used to criticize the stare decisis analysis in the draft Dobbs opinion. Sure, the Supreme Court has overruled precedents, but has (almost) always done so to expand liberty. Brown v. Board of Education, for example, (partially) overruled Plessy, but did so in the service of expanding the equal protection under the law.

This argument presumes that liberty is defined by removing the state's power to restrict individuals. Consider Adkins v. Children's Hospital and West Coast Hotel v. Parrish. The former case protected a right of individuals to contract. The latter case protected the right of the people to govern themselves, and mandate a minimum wage. Both cases involved rights of different sorts. To say that West Coast Hotel did not promote liberty is to adopt a classically libertarian understanding of liberty. But there is more than one conception of liberty.

Chief Justice Roberts explored this concept in his Obergefell dissent:

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

Justice Scalia made this point more forcefully in his Obergefell dissent:

Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court's claimed power to create "liberties" that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Alito's draft opinion explains that there are many conceptions of liberty, quoting Lincoln and Berlin:

Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the "liberty" protected by the Due Process Clause because the term "liberty" alone provides little guidance. "Liberty" is a capacious term. As Lincoln once said: "We all declare for Liberty; but in using the same word we do not all mean the same thing." In a well-known essay, Isaiah Berlin reported that "[h]istorians of ideas" had catalogued more than 200 different senses in which the terms had been used.

It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.