What if the Supreme Court reaffirms Roe v Wade? (Part I)
Why the future of the conservative legal movement may rest on Dobbs v Jackson's Whole Women's Health
What will happen if the Supreme Court end up reaffirming Roe v Wade next June, when the court will issue its opinion in a case whose oral arguments took place December 1st. In Dobbs v Jackson’s Whole Women’s Health the court is being asked to rule on the controversial Mississippi law that bans all abortions after 15 weeks. Its possible that the court may well end up reaffirming Roe and striking down the Mississippi law. Despite the fact that conservatives and progressives are already celebrating and panicking (respectively) that the court is poised and ready to overturn Roe, I think a reaffirmation of Roe and Casey’s central holdings is the most likely outcome. Today we will discuss why this outcome - an affirmation of Casey and Roe - has a higher probability of happening than either the left or right seem to recognize. And why this one case will largely decide the future of the conservative legal movement.
Dobbs is facially unconstitutional under Roe's rigid trimester framework as well as under Casey's "undue burden" standard. The crux of that being the right to an abortion can be said to exist in theory, but not in fact, is itself unconstitutional.
The first thing to note about why this supposedly conservative majority court doesn't mean much. Just consider that Roe was decided right after a massive conservative shift in which Richard Nixon appointed 4 very conservative, strict constructionist judges in a period of 2 years and yet we ended up with a 7-2 vote in favor of abortion. Only Justice Rehnquist, the last of those 4 Nixon appointees and Justice Byron White, a Kennedy appointed liberal dissenting.
Conservatives believed that since a Constitutional amendment banning abortion was just unrealistic, they needed a stronger conservative presence on the court to overturn Roe. And that’s what we had in 1992. At that point 8 of the justices on the Court were conservatives, appointed by Reagan and Bush. The only remaining liberal, Justice Byron White. The dissenting liberal justice in Roe. And yet by a vote of 5-4 the court ruled to basically reaffirm Roe in Planned Parenthood v Casey. I have done "Today In Supreme Court History" articles and videos on both cases (links below this article)
There are 2 key reasons I believe we are likely to see this court reaffirm Roe next June when Dobbs is decided. We have talked about both these issues before so I will be brief. The first is, conservatives don't have the 6-3 majority they think they do. We have a 3-3-3 Court. With only 3 true conservatives made up of Clarence Thomas, Samuel Alito & Neil Gorsuch, Then somewhere to the left of the conservatives we have John Roberts, Bret Kavanaugh and Amy Coney Barret. Leaving Sonia Sotomayor, Elena Kagan and Stephen Breyer as three Justices desperate to form a majority with anyone they can.
The clear majority that does exist is a 6-3 majority of Judicial Supremacists, Including Roberts, in the role of, not only Chief Justice, but the Court’s chief defender of and advocate for a philosophy of Judicial Supremacy. Along with Associate Justices Kavanaugh, Barrett, Sotomayor, Kagan & Breyer. All disciples of the Cooper v Aaron philosophy of Judicial Supremacy.
Judicial Supremacy is a topic I have addressed directly in numerous articles, videos & podcast episodes:
How Supreme Is The Supreme Court?
Did the Constitution Establish Judicial Supremacy?
But its essentially a notion that Federal Judges are free to ignore Article VI Clause 2 which clearly states that it is the Constitution and all laws made in pursuance thereof, that are the supreme law of the land, the Court in Cooper v Aaron rewrote the Constitution so that decisions passed by the Court that rule on what the law means are also the supreme law of the land! Despite the fact that this directly contradicts anything found in Article I that would suggest Court decisions are equal to constitutionally derived legislation, Article III which grants the federal Judiciary any and all powers vested in them or Article VI where, as I just mentioned doesn’t empower Court opinions as Supreme Law….
This means there are 6 Justices who are likely going to decide this case not on, if abortion is a Constitutional right, or if the Mississippi law contradicts the Constitution or any federal law. Instead they will ask is the law contradicts Roe. Which it does. And since Roe is a case already decided by the court, to 6 of the Justices on the court, that makes the opinion in Roe v Wade the Supreme law of the Land. I believe Dobbs will be struck down for this reason, rather than any of the several much better reasons to strike it down.
But since reaffirming Roe means abortion will continue to exist in its current status quo ante, what possible consequences could be the result of nothing changing? Really, the only consequences I see for a reaffirmation of Roe is the effect this will have on the future of the conservative legal movement. And its not good if you’re a conservative. But it will also, unfortunately, likely have a very negative effect for those of us who aren’t conservatives, but are Constitutional originalists. As these two distinct concepts have often come to be seen as one and the same. Including by a large number of conservatives who think because they are conservative they are de facto originalists. Perfectly illustrated by clowns like Ted Cruz and Josh Hawley, who care not a bit for the original meaning of the Constitution or even limited government. But also by judges such as Chief Justice Roberts and Bret Kavanaugh and to a lesser degree, Amy Coney Barret. I have both articles and videos covering what is meant when one talks about the judicial philosophies of Constitutional Originalism and statutory Textualism, I won’t rehash that discussion here.
I am going to start by talking a bit what the creation and purpose of the conservative legal movement to help distinguish what exactly the difference is regarding that movement, as opposed to the judicial philosophies often erroneously conflated as one and the same with legal conservatism.
The conservative legal movement finds itself at its most precarious point since its inception in the early 1970s. That might sound implausible. The last four years saw the appointment of three Supreme Court justices, dozens of appellate judges, and nearly 200 district court judges—almost all coming from within the ranks of the conservative legal movement. Conservatives on the Supreme Court now (ostensibly) hold a 6–3 majority, making it, in all likelihood, the most conservative Court we will see in our lifetimes. It would thus be easy to conclude that the conservative legal movement is at its apogee.
But it is precisely the movement’s success that puts it in peril. After decades of laying intellectual groundwork, building institutions, and engaging in politics, legal conservatives are in a position to accomplish what they see as the revival of the rule of law. But with that success has come high expectations that the Supreme Court will deliver on the legal goals that have sustained the movement through many disappointments and false starts. Foremost of those goals: overruling Roe v. Wade, the 1973 decision establishing a constitutional right to abortion; and Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe’s “central holding.” More than any other Supreme Court decision, Roe is responsible for the emergence of the conservative legal movement. If there were only one reason that the movement has endured for decades, it would be to see Roe overturned.
These will be the stakes when the Supreme Court decides Dobbs v. Jackson Women’s Health Organization—the lawsuit challenging the constitutionality of Mississippi’s prohibition on abortions after 15 weeks of pregnancy—next summer. As December 1’s Supreme Court oral argument highlighted, Mississippi and its supporting amici have expressly asked the Court to overrule Roe and Casey, and Dobbs squarely presents that issue because, as Jackson’s Women’s Health Organization asserted in its briefing and at oral argument, Mississippi’s ban “directly contravenes [Roe’s] ‘central holding’ and cannot stand” if Roe remains good law. This, then, is the moment the conservative legal movement has fought to bring about. If the Court fails to overrule Roe, the ruling will likely shatter the movement, and while (under a proper conception of the judicial role) the potential effect of Dobbs on the conservative legal movement should be irrelevant to the outcome in that case, it would be a significant legacy of the Roberts Court if Dobbs brought an end to one of the most successful intellectual and political projects of the past half-century.
That demise would result not only from dashed expectations but also from intellectual tensions within the conservative legal movement—present since its inception and now coming to the fore. The Dobbs decision will likely either increase those tensions to the point of rupture or greatly alleviate them. Next summer will be a defining moment in the battle for the Constitution.
What we now know as the conservative legal movement was born in the aftermath of the Warren Court, the period from 1953 through 1969, when Earl Warren served as chief justice. It was a time of tremendous upheaval in American constitutional law. To take just a few examples, the Court required states to provide indigent criminal defendants with a lawyer, mandated the principle of one-person-one-vote in redistricting, declared a right to use contraception, and required the reading of so-called Miranda Rights to those taken into police custody. All these (and many other) decisions were controversial, and all represented dramatic departures from well-established constitutional law. A revolution in so many areas of law and social life was bound to provoke a counterrevolution in law and politics, and it did.
The legal counterrevolution began when then–Yale law professor Robert Bork published an article that began laying the intellectual foundation for the conservative legal movement. “Neutral Principles and Some First Amendment Problems” argued that the Supreme Court’s legitimacy rests on its ability to derive principles neutrally from the text and history of the Constitution, define those principles in a neutral manner, and apply them impartially across cases. To the extent the justices instead derive principles from their own viscera, define them arbitrarily, or apply them inconsistently, Bork wrote, they “claim for the Supreme Court an institutionalized role as perpetrator of limited coups d’etat.” Bork cited as a prime instance of this illegitimate decision-making the Court’s opinion in Griswold v. Connecticut, the 1965 case holding that married couples have a constitutional right to use contraception (a right that the Court extended to unmarried individuals in the 1972 case of Eisenstadt v. Baird). Griswold famously (or, to most legal conservatives, infamously) based its holding on the notion that, while no specific provision of the Constitution clearly established the right to use contraception, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” To Bork, this was emblematic of the lawlessness of the Warren Court.
From 1953 to 1969, Supreme Court Chief Justice Earl Warren presided over a tremendous upheaval in American constitutional law; the conservative legal movement was born in its aftermath
Bork thus began charting an alternative theory of constitutional adjudication based on neutral principles derived from the text and history of the Constitution. It was a path that would lead to the development of originalism, the theory that constitutional provisions must be interpreted and applied in accordance with the meaning they had when they were ratified. Subsequent works by Justice William Rehnquist and Harvard law professor Raoul Berger furthered originalism’s development, and by 1980, it had become a recognized rival to the brand of progressive constitutional jurisprudence embodied by the Warren Court.
The election of Ronald Reagan in 1980 proved decisive to originalism’s ascendancy, ushering in a wave of judicial appointments (including of Bork to the U.S. Court of Appeals for the D.C. Circuit) and the elevation of committed originalists to senior positions in the Department of Justice. The appointment of Justice Rehnquist as chief justice and of Antonin Scalia as an associate justice, along with several high-profile speeches defending originalism delivered by Attorney General Edwin Meese in Reagan’s second term, made it clear that originalism was here to stay. It had become the default theory of constitutional adjudication for a new coalition that formed the conservative legal movement.
But from the beginning, two major sources of tension beset the movement: a division among originalists and a division between originalists and conservative non-originalists.
The first, intra-originalist tension was between those who saw originalism as a means to achieving some other substantive end and those for whom it was the only legitimate constitutional methodology. Those holding the instrumentalist view hoped that originalism would achieve various ends but were usually most concerned with shrinking the federal judiciary’s role in American life after the Warren Court’s aggressive intrusion into the political and social realms. They advocated originalism as a way of achieving “judicial restraint,” by which they often meant that the judiciary should generally allow the democratic process to settle controversial political and social questions.
Harvard law professor James Bradley Thayer had articulated this principle in an 1893 lecture “The Origin and Scope of the American Doctrine of Constitutional Law.” The Supreme Court, Thayer argued, should hold a political act unconstitutional only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question.” Progressive constitutional theorists took up Thayer’s argument in the early twentieth century as a way of criticizing Supreme Court decisions holding many early progressive and New Deal initiatives unconstitutional. But things took a turn during the Warren Court as the judiciary began assertively intervening in state and federal social policy, leading the New Dealer justice Hugo Black to lament, in his Griswold dissent, that the progressive Warren Court had betrayed the judicial-restraint principles of the progressive New Deal Court.
As Princeton professor Keith Whittington has observed, Black’s accusation of the Warren Court’s hypocrisy in Griswold became a standard attack by early legal conservatives. Bork made the point explicitly in his 1971 article, as did Rehnquist in an important 1976 lecture. Early legal conservatism, then, had a strong commitment to judicial restraint, and it saw originalism as a way of reining in an out-of-control judiciary. An important implication of this view was that, to the extent that originalism did not restrain the judiciary, it should be abandoned as having failed to serve its purpose. The instrumentalist commitment to originalism was contingent, not based on deep principle.
Unlike the instrumentalists, other legal conservatives saw originalism as logically entailed by the Constitution and the principles on which it rested. This theme, too, can be found in Bork’s 1971 article. Bork argued that the basic principle of our system is that the majority rules. But the majority established limits on its own power through the Constitution, and this placed the judiciary in the position of having to determine, through constitutional interpretation, when the majority had done so. If the Court wrongly held that the Constitution limited majority power when it did not, this abetted tyranny of the minority; if the Court held that the Constitution did not limit majority power when it actually did, this abetted tyranny of the majority. Bork called this the Madisonian dilemma, and the only way for the Court legitimately to draw the line between majority and minority power, he maintained, was to interpret the Constitution in line with neutral principles, and that could be achieved only by deriving, defining, and applying those principles based on the text and history of the Constitution—that is, through originalism. Originalism, for Bork, was the only plausible methodology of constitutional adjudication because it was logically required for the legitimacy of judicial review and, by extension, for the Constitution. This commitment to originalism was not contingent.
Over the next several decades, as scholars and jurists (such as Justice Scalia) helped refine the theoretical basis of originalism, the non-instrumentalist view became dominant within conservative intellectual circles, and the judicial-restraint view subsided, though it remained a significant minority position and continues to play an outsize role in conservative political discourse about the Court. Most legal conservatives came to believe that originalism was the only legitimate constitutional methodology and that the Court should enforce the Constitution’s original meaning, regardless of how much or how little intrusion was required. That explains why, for instance, Justices Scalia, Clarence Thomas, and Samuel Alito were prepared to throw out the entire Affordable Care Act, in what would have been the most important repudiation of the political branches since the New Deal; by contrast, Chief Justice John Roberts—the Court’s most committed Thayerian (though never a committed originalist)—was unwilling to do so. While the tension between instrumentalists and non-instrumentalists might, at first glance, appear to be merely a matter of intellectual history, it has had enormous real-world consequences.
The second tension is equally significant. From the beginning, legal conservatives have disagreed about whether originalism rests on a sufficiently robust moral foundation. All constitutional theories, including originalism, ultimately require a moral argument for why we should obey the Constitution. Even if a judge believes, based on some ostensibly morally neutral reason, that the only way to interpret a historical document like the Constitution faithfully is according to its original meaning, that does not show that the judge should care about faithfully interpreting the Constitution. If we are not bound by the Constitution, the judge would be free to ignore a faithful interpretation and proceed to rewrite the Constitution instead. To explain why this would be wrong, one would need to show that the judge has an obligation to obey the Constitution as written. Moreover, the moral stance shapes how we interpret the Constitution because this tells us the purpose of interpreting it. If, for example, a judge believes (as many progressive constitutional theorists do) that the only way that the Constitution can have morally binding force is if its meaning can be revised without a formal constitutional amendment, that moral justification would require rejecting originalism and embracing a theory that allowed judges to change the document’s meaning over time.
Since originalism, like any other constitutional theory, ultimately rests on a moral argument, it can be challenged by those who find that argument insufficient. As former Amherst professor Hadley Arkes wrote in First Things recently (addressing both originalism and its statutory counterpart, textualism), because originalism is “deeply reluctant to make [the] move beyond ‘tradition’ and [the text] to the moral truth of the matter,” it “indeed has nothing to say on matters of real consequence. It is a morally empty jurisprudence.” More recently, Harvard law professor Adrian Vermeule has become the leading critic of originalism from the right by contending that originalism is morally bankrupt. Vermeule’s views are complex, but what he has written thus far attacks originalism from the perspective of the natural-law tradition, in which the moral legitimacy of the Constitution (as a form of positive law) depends on its accordance with the natural law. As nothing in originalism requires it to accord with the natural law, Vermeule argues, no morally compelling argument favors it.
The moral critique of originalism came to the fore in the summer of 2020 when the Supreme Court decided Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation or transgender status. The case involved statutory interpretation (textualism), not constitutional interpretation (originalism). But the justifications for, and methodologies of, textualism and originalism overlap significantly, which is why moral critics of originalism often use the term interchangeably with textualism. Arkes, for instance, argued that the Bostock opinion, written by the originalist and textualist Justice Neil Gorsuch, proved that originalism lacks a sufficiently compelling moral account. Following Bostock, the conservative legal movement expressed widespread frustration and disillusionment with originalism, as manifested by Senator Josh Hawley’s statement that Bostock “represents the end of the conservative legal movement.” My own anecdotal sense is that the Vermeulian critique of originalism has gained significant momentum among younger legal conservatives since Bostock. Once again, what might seem like mere intellectual history does, in fact, have potentially profound practical consequences, since the triumph of the Vermeulian critique would be the end of the originalist project that has been at the heart of legal conservatism for decades…..