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The Lone Ranger’s Long Game

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The Lone Ranger’s Long Game

Justice William Rehnquist’s dissents in Roe v. Wade and Planned Parenthood v. Casey find overdue vindication in the Supreme Court’s Dobbs ruling. June 28, 2022
Politics and law
The Social Order

William H. Rehnquist joined the Supreme Court in January 1972. From the beginning, he was a generous colleague, a clear writer, and an independent thinker. His understanding of the judicial role, aversion to judicial activism, and respect for tradition made him an outsider on the more adventurous and less disciplined Court of that era. He was willing to, and often did, dissent alone in his early years on the bench, and he proudly displayed in his office a Lone Ranger doll admiringly given to him by law clerks.

Rehnquist also took the long view, though. I had the privilege of serving as one of his law clerks during the 1996 term and recall a conversation in chambers about a low-profile search-and-seizure case—the sort of case that he, borrowing from Thomas Gray’s “Elegy Written in a Country Churchyard,” occasionally described as a “flower born to blush unseen.” The case completed, in Rehnquist’s view, a long, gradual doctrinal evolution away from an earlier error. “Ah,” he said, smiling, “another lost lamb finds his way home.” On another occasion, regarding a ruling that, similarly, had been a long time coming, he quipped, making the relevant words rhyme, “patience and perseverance made a bishop of his reverence.”

I hope it is not presumptuous, and that it does not disrespect Rehnquist’s Lutheranism, to suspect that, somewhere and somehow, he is welcoming the Dobbs case as the long game played well.

Last Friday, in Dobbs v. Jackson Women’s Health Organization, the Court concluded that “the Constitution does not confer a right to abortion” and that “the authority to regulate abortion must be returned to the people and their elected representatives.” The justices overruled two earlier, landmark cases—Roe v. Wade and Planned Parenthood v. Casey—that had invented and then reimagined a constitutional right to abortion, imposing on the country one of the world’s most permissive abortion-regulation regimes. The Court’s confession of past error in Dobbs is, among other things, almost certainly the most salient and significant element of Rehnquist’s legacy.

Along with Justice Byron White—a John F. Kennedy appointee, military veteran, and Heisman Trophy contender—Rehnquist dissented from the Court’s overreach in Roe. He and White agreed that the ruling was an “improvident,” “extravagant,” and “raw” exercise of judicial power. It was, as Harvard Law School’s John Hart Ely observed at the time, “not constitutional law and [gave] almost no sense of an obligation to try to be.” In keeping with a judicial philosophy that would guide him for more than three decades, Rehnquist objected to the Court’s arrogant displacement of democratic decision-making and the policy choices of nearly every state.

During the years that followed Roe, in later cases raising questions about various abortion-related measures, Rehnquist adhered to his view that the Constitution, correctly understood, does not disable legislatures from reasonably regulating the procedure. By the time the Court heard oral arguments in Casey in the spring of 1992, it appeared to many that an apparently more conservative majority of justices was prepared, finally, to repudiate Roe. Instead, a divided, bare majority of the Court reaffirmed what it characterized as Roe’s “central holding,” though that holding’s basis was relocated from “zones of privacy” to the Constitution’s “promise . . . that that there is a realm of personal liberty which the government may not enter.” Again, and this time joined by three colleagues, then-Chief Justice Rehnquist dissented. Roe, he explained, “was wrongly decided, and . . . should be overruled[.]”

Last week, a half-century after Roe and nearly 30 years after Rehnquist’s dissenting call in Casey, Justice Samuel Alito echoed his words: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision[.]”

But it is not only the model of Rehnquist’s dissents that shaped and animated the Court’s ruling in Dobbs. The bedrock legal question in this and earlier abortion cases is whether—despite there being no explicit reference to abortion in the Constitution—the Fourteenth Amendment protects the practice from government interference. It has become established that the Constitution protects some rights that are not specifically enumerated, such as a right to direct the education of one’s children and the right to marry. How should we identify such rights? And how do we prevent unelected judges from expanding the Fourteenth Amendment’s scope in ways that constrict the states’ legitimate and longstanding authority?

For answers, Justice Alito relied on the late Chief Justice’s opinion for the Court in Washington v. Glucksberg, a 1997 decision that rejected an asserted unwritten right to physician-assisted suicide. Rehnquist and his colleagues conceded that the Fourteenth Amendment “provides heightened protection against government interference with certain fundamental rights and liberty interests,” but he insisted that these rights and interests are limited to those “which are, objectively, deeply rooted in this Nation’s history and tradition” and “essential to our Nation’s scheme of ordered liberty.” The “right to die” asserted and rejected in Glucksberg does not satisfy these criteria and, the Dobbs majority concluded, neither does the abortion right created in Roe. Echoing a consistent theme in Rehnquist’s writings, Alito wrote that “we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.”

The next question for the Dobbs majority was whether the principle of stare decisis—that is, the idea that judges should respect and work in continuity with past precedents—weighs in favor of retaining Roe and Casey, even though they were wrongly decided. To be sure, this principle is widely and sensibly seen as important for stability, predictability, efficiency, and impersonality in the law. In his Casey dissent, though, Rehnquist rejected not only the “constitutionally imposed abortion code” of Roe and its progeny but also the suggestion that stare decisis required its retention. “Erroneous decisions,” he noted, “in . . . constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible.” He continued, “[i]t is therefore our duty to reconsider constitutional interpretations that ‘depar[t] from a proper understanding’ of the Constitution.” Justice Alito’s conclusion, three decades later, was the same: stare decisis “does not compel unending adherence to Roe’s abuse of judicial authority.”

To say that the Constitution confers neither a right to abortion nor a right to assisted suicide, and that the Fourteenth Amendment does not insulate these matters from public supervision, is not to deny their grave importance or that they are closely contested. In Rehnquist’s view, “because ours is a government of the people’s elected representatives, substantive value choices should by and large be left to them.” Accordingly, he closed his Glucksberg opinion with the observation that “Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.” Echoing Rehnquist’s endorsement of judicial modesty, Justice Alito concluded the Court’s Dobbs opinion with this: “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

This returning of authority is a fitting and overdue vindication of Rehnquist’s understanding that our Constitution endures through the enactments of our elected and accountable legislators and the debates and votes of its people—not through the “enlightened” updating of its federal judges.

Photo by Bettmann/Getty Images

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