Assuming that the leaked opinion in Dobbs v. Jackson Women’s Health Organization by Justice Samuel Alito commands a majority of the Supreme Court in something like its current form, it has important implications for constitutional jurisprudence beyond Roe v. Wade. The opinion begins not by parsing the Court’s many past cases on abortion, but instead by asking how a right to abortion can be located in the Constitution. Alito roots his judgment in the words of fundamental law rather than in the Court’s own precedents, privileging the original meaning of our binding charter instead of the Court’s past glosses.
Alito responds to arguments that have tried to ground Roe v. Wade in almost every conceivable provision of the Constitution, from the First to the Ninth Amendments, and shows why they are unsound. He considers that one might base the putative right to abortion on the word “liberty” in the Fourteenth Amendment but holds that that guarantee protects only “rights deeply rooted in the nation’s history and tradition.” Abortion obviously fails that test.
The opinion also identifies the right reading of the Constitution with its meaning as enacted. One might quibble that the Due Process Clause, in which the term “liberty” appears, was meant to trigger only procedural rights, and that any further inquiry into the content of these rights for substantive purposes is thereby superfluous. But Justice Alito is careful to note that much the same analysis of tradition would be mandated by the Fourteenth Amendment’s grant of privileges or immunities to all citizens, which clearly offers a fount of substantive rights. Many scholars have argued that it protects liberties that were deeply rooted at least at the time of enactment and perhaps even rights that become deeply rooted thereafter. But because the right to abortion is not so rooted, that clause can provide no foundation for it.
The opinion’s careful analysis of text therefore represents not only the overruling of Roe but also a sea change in the appropriate method of reasoning about the Constitution. What was notable about Roe was that it failed to locate the abortion right in the text of the Constitution or even in previous precedent. As law professor John Hart Ely said about Roe, “it is not constitutional law and gives almost no sense of an obligation to try to be.” (Not surprisingly, Alito quotes Ely.) But Roe was also the culmination of decades of loose thinking about constitutional interpretation, as expressed in cases that ignored the original meaning of text and were driven by what the justices thought of as good policy. If the Dobbs decision follows this draft opinion, then its most important legacy will be the restoration of a more rigorous method of reasoning to the heart of constitutional law. And it represents a triumph for the conservative legal movement in its decades-long fight to restore the original meaning as the centerpiece of constitutional interpretation.
Alito’s opinion does not imply that precedent will become irrelevant. After showing that the Constitution as originally enacted does not include a right to abortion, Alito analyzes various factors that the Court has canvassed in deciding whether to overrule Roe. But even here, he emphasizes that the quality of the reasoning of the precedent up for overruling remains key. And that factor will push the Court to consider the precedent’s connection to a plausible interpretation of the Constitution’s meaning.
True, Alito also emphasizes that the Court must protect reliance interests that have developed around precedents, even when it deems a given precedent wrong. As Michael Rappaport and I have argued elsewhere, affirming precedent is not necessarily contrary to originalism. Following past rulings was an established judicial method at the time of the Founding and can thus be consistent with an originalist interpretation of the Constitution. It would be nice if the courts never made any mistakes, but they do—and people who rely on them should not suffer. But Alito is careful to note that the reliance in question must be specific. It is not enough to argue that many people have become used to a Supreme Court decision and believed they benefited from it in the past. They must endure costs from the overruling that outweigh the substantial benefits of following constitutional provisions that enjoyed a continental consensus.
Commentators are wrong to think that the decision suggests that the right to same-sex marriage announced in Obergefell is at risk. Entering into a marriage creates specific reliance, including costly joint investments; individuals can change their behavior in light of the new law of abortion without dissolving bonds. Still, the Court may be more willing to overrule decisions that have no plausible originalist support and have not induced substantial, specific reliance. The decisions permitting racial preferences in higher education, for example, should be no bar to reconsidering the constitutionality of affirmative action when the Court decides on the case in which Harvard is alleged to have discriminated against Asians.
Beyond any particular case, however, Alito’s opinion provides a victory for the rule of law and popular sovereignty. A Court that builds only on its own work rather than periodically revisiting the people’s edifice for politics and liberty becomes an elite oligarchy, not a faithful agent of the citizenry.
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