The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over the weekend, Yale law professor Akhil Amar had a substantial essay in the Wall Street Journal discussing the leaked draft opinion in Dobbs by Justice Alito that would overturn Roe v. Wade. Professor Amar is one of the nation's most prominent constitutional law professors. He is fairly progressive, but also considers himself an originalist. As a consequence, he sometimes breaks with prevailing academic sentiments, and he did so here, arguing there is "nothing radical, illegitimate or improperly political in what Justice Alito has written."
While some commentators have claimed the Dobbs draft would represent a dramatic break from the Court's prior treatment of precedent, Professor Amar claims there was not "anything unusual" in the draft's treatment of precedent.
Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. Over the last century, the Court has overruled itself about twice a year—roughly the same rate at which the Court has overturned acts of Congress.
Precedents fall for many reasons. Sometimes the world changes in ways that mock the logic and expectations of the old ruling. Sometimes opposing lines of cases evolve and clash, and something must give. Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.
Amar could have added that, since John Roberts has been Chief Justice, the Supreme Court has overturned precedents (and invalidated federal statutes) at a measurably lower rate than did the Rehnquist, Burger, and Warren Courts. This could well change in the years ahead given the Court's current composition, but it has not yet. Overruling Roe would be quite significant–and would almost certainly be the most consequential overturning of a precedent to date in this century–but it would not represent a dramatic departure from the Court's recent approach to precedent.
Unlike most of his colleagues on the Left, Amar believes that Roe should be overturned (or at least substantially rethought). He writes:
Today, the Supreme Court's 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft. (Full disclosure: The draft cites me and several others as constitutional scholars who oppose Roe but personally support abortion rights.) Even the late Justice Ruth Bader Ginsburg was sharply critical of the decision.
Professor Amar also disputes some of the fear-mongering about what overturning Roe would mean for other constitutional rights. As he also noted in a recent episode of his podcast, many of these claims are quite unfounded.
Does Justice Alito's draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court's precedents on contraception and interracial marriage?
It does not. In fact, the Dobbs draft reinforces these iconic opinions by explaining why they were right—namely, because the freedoms recognized in these cases were "deeply rooted in the Nation's history and tradition." These watershed rulings were once controversial in conservative constitutional circles, thanks to the influential work of Robert Bork, but now they are safe.
Amar goes on to explain how the draft opinion provides a ready basis to distinguish cases like Griswold v. Connecticut and Loving v. Virginia. Unlike abortion, rights related to marriage are "deeply rooted in the Nation's history and tradition," and there is no widespread political movement seeking the reversal of the precedents. Loving also rests on an Equal Protection rationale that, if anything, has become stronger over time. The current Court is arguably even more hostile to explicit race-based classifications than its predecessors.
Amar concedes that "the draft's logic could be seen to undermine the Obergefell decision" recognizing a right to same-sex marriage, but does not think that decision is under threat either. He notes the increasing spread and acceptance of same-sex marriage and that marriages implicate more substantial reliance interests (as that concept has been traditionally understood in the law) than does a right to abortion.
Amar closes with some broader points about the Court, and persistent progressive attacks on it.
Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh's nomination to the Court, remains true: "Americans generally and with good reason view today's Court more favorably than today's Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today's President and Congress say the same?"
In short, I am a Democrat who supports abortion rights but opposes Roe. The Court's ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I'm wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.