Neutral Principles in Dobbs and Brown

Andrew Coan

Many critics have observed that the limited holding of Dobbs v. Jackson Women’s Health Organization cannot be squared with the Supreme Court's embrace of Washington v. Glucksberg’s history-and-tradition approach.  If the only rights protected by substantive due process are those deeply rooted in the nation’s history and traditions, as the Dobbs majority contends, then far more than abortion is at stake. At a minimum, the constitutional rights to contraceptives, same-sex marriage, and same-sex intimacy cannot easily be squared with this principle. Yet the majority insists that Dobbs has no implication for rights other than abortion. 

According to critics, this renders the Dobbs decision lawless in precisely the sense that Herbert Wechsler contended that Brown v. Board of Education was lawless: The Court failed to ground its decision in a principle that the justices in the majority are willing to follow to its logical conclusions. This is, indeed, a shortcoming and an entirely appropriate basis for criticizing Dobbs. But as Alexander Bickel famously responded to Wechsler, it is an extremely common feature of Supreme Court decisions—and quite possibly necessary for a constitutional court to function in a broadly majoritarian system. This shortcoming is also manifested by many decisions the critics of Dobbs admire, including Lawrence v. Texas, Shelley v. Kraemer, and arguably Brown itself.  

The key to distinguishing these correctly celebrated decisions from Dobbs is their outcomes. Lawrence, Shelley, and Brown were all major steps forward for liberty, equality, and multi-racial democracy. Dobbs is a giant step back, although its effects on the ground remain evolving and uncertain. This is not to suggest that constitutional law—or even the Court’s decision in Dobbs—is fully or simply reducible to political morality. But in many of the most salient cases, emphatically including Brown, Roe, Casey, and Dobbs, the traditional legal materials are sufficiently open-textured that political morality is the most important factor to any plausible understanding—or critique—of the Court’s work. 

This is hardly a novel observation, and it is one that liberals and progressives have long insisted on. The debate over Dobbs would be clearer and more productive if both sides kept this point more fully in view.

I explain further in a new essay called “Dobbs v. Brown.”