The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chief Justice Roberts Lost His "Long Game"
The road from Citizens United to Dobbs was paved with saving constructions.
At some point Chief Justice Roberts may have had a "long game." But along the way, he he lost that game.
In Citizens United v. FEC (2010), the Chief Justice wrote a concurrence that seemed to lay the predicates for overruling Roe. Consider this observation:
[I]f adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent's validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent's underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.
This passage could have come from the Dobbs majority opinion. But when the time came to overrule Roe in Dobbs, Roberts blinked. He wrote a concurrence in judgment that no one else joined. Indeed, Roberts committed the same three cardinal sins that the Casey plurality committed. First, both opinions overruled landmark precedents, in part: Casey overruled the trimester framework from Roe; Roberts in Dobbs excised the viability line from Casey. Second, both opinions substituted one arbitrary line for another: Casey replaced the trimester framework with the viability line; Roberts in Dobbs replaced the viability line with a standard based on when a woman knows she is pregnant. Third, both opinions took account of public opinion, and avoided a ruling that would harm the Court's legitimacy (in the eyes of liberal elites).
In Dobbs, Justice Alito's majority opinion cited Roberts's Citizens United concurrence, as if to say, "you changed, bro!"
The concurrence's most fundamental defect is its failure to offer any principled basis for its approach. The concurrence would "discar[d]" "the rule from Roe and Casey that a woman's right to terminate her pregnancy extends up to the point that the fetus is regarded as 'viable' outside the womb." But this rule was a critical component of the holdings in Roe and Casey, and stare decisis is "a doctrine of preservation, not transformation," Citizens United v. Federal Election Comm'n (2010) (Roberts, C. J., concurring). Therefore, a new rule that discards the viability rule cannot be defended on stare decisis grounds. . . .
While the concurrence is moved by a desire for judicial minimalism, "we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right." Citizens United (Roberts, C. J., concurring). For the reasons that we have explained, the concurrence's approach is not.
What happened between Citizens United and Dobbs? NFIB. The decision to adopt the saving construction, and save the ACA, changed the man. Once he signaled that he would choose narrowness as an end unto itself, the template was set. Roberts would do it over and over again. He would make the saving construction an art form, as he balanced the center of the Court. But when he was no longer the Court's fulcrum, all he could muster was lonely, failed saving construction of Roe.
Perhaps the most significant aspect of Dobbs is that progressives no longer have a monopoly on defining the Court's "legitimacy." This rubicon cannot be uncrossed. Come what may, the Court will do its job, Justice Alito explained:
As Chief Justice Rehnquist explained, "The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty, and should be no more subject to the vagaries of public opinion than is the basic judicial task." Casey. In suggesting otherwise, the Casey plurality went beyond this Court's role in our constitutional system. . . .
We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
I made this point in my Deseret News op-ed:
Today, Roe was overruled in the Dobbs v. Jackson Women's Health Organization decision. And in doing so, the majority demonstrated real courage "under fire." Five justices were willing to take this bold and correct legal step in the face of never-ending personal attacks, efforts to pack the court, fallout from the leaked draft opinion, protests outside their homes and even an assassination attempt.
Dobbs, which is a triumph for originalism and sound constitutional law, also signals that the court is infused with judicial fortitude. This virtue, more than any particular method of deciding cases, guarantees that the court will steadfastly safeguard the rule of law.
There is still hope for the Chief Justice to find his lost moorings. Or, he can continue in free-fall.
