Monday, October 23, 2023

The Wages of Crying Roe

Neil Siegel

In a new essay for a symposium on abortion rights being hosted by the Journal of American Constitutional History, I argue that Dobbs v. Jackson Women's Health Organization (2022) was an ugly, lawless judicial performance by the U.S. Supreme Court.  In its rush to give the Republican Party the victory that it had most wanted for decades, the Court allowed the State of Mississippi to dramatically broaden what it was asking the Court to do after Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett.  Rather than be chastened by Senate Republicans' unprecedented politicization of the Supreme Court confirmation process beginning with Justice Scalia's death, the five Justices in the majority responded with procedurally dubious maneuvers of their own.

Justice Samuel Alito's majority opinion articulates a gratuitously sweeping rationale for ending any constitutional protection for abortion and then repeatedly runs away from this rationale in asserting that other substantive due process rights are not in jeopardy even without considering stare decisis--even though protection from involuntary sterilization, contraception, inter-racial marriage, same-sex marriage, and same-sex intimacy are no more deeply rooted in nineteenth-century history and tradition than abortion.  The opinion is thus utterly unprincipled at its analytic core and lacks the virtue of judicial candor.  Adding insult to institutional self-injury, the opinion portrays itself as merely deferring to the nineteenth-century historical record when it actually leverages moral opposition to abortion to determine which parts of the record it will credit (concern for fetal life) and which parts it will dismiss (gender bias and anti-Catholic sentiment).  

The tone of the opinion is uncommonly derisive.  It seems intent on accomplishing what it accuses the Roe Court of having done: exacerbate social conflict over abortion.  For a stark difference in tone and an effort to reassure the losers that they have not lost everything, see Justice Brett Kavanaugh's concurring opinion.  Justice Clarence Thomas presumably knew what he would be getting by assigning the majority opinion to Justice Alito.

As Chief Justice John Roberts explained in his concurrence in the judgment, there were other ways for Mississippi to have won this case.  There were also other ways for the Court to have stopped protecting the abortion right.  I would have disagreed with those ways, but they would not have deserved the same kind of criticism.

Larry Solum at Legal Theory Blog generously recommends the paper and provides the abstract.  Here I will share the concluding paragraph:

Having a chip on one's shoulder is not an admirable quality in a judge. Anger, bitterness, and resentment are not conducive to sound legal reasoning and good judicial opinion writing, let alone a tone that conveys to the losers in a constitutional controversy with enormous stakes that at least they have been respectfully heard.  But maybe the wages of crying Roe for so long are having some such judges on the Supreme Court of the United States.  Professor John Hart Ely's famous criticism of Roe provides an apt criticism of Dobbs: "It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

As someone who has publicly opposed Court-packing and other structural reforms that I fear would destroy or severely damage the Court's ability to execute its responsibilities in the constitutional scheme, I take no satisfaction in criticizing Dobbs in such strong terms and thereby contributing to efforts to undermine the Court's legitimacy as an institution. But as I write in the essay, if commentators do not criticize the Justices when they do not behave like judges, the Justices may behave so badly that judicial legitimacy will eventually not be worth preserving anyway.

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