At root, this term’s major abortion case, Dobbs v. Jackson Women’s Health Organization, is about stare decisis, namely the extent to which members of this Court should defer to their predecessors’ opinions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Both of those decisions have been criticized for decades, especially by conservatives, for creating a national abortion right not found in the Constitution’s text or the nation’s history or traditions and for fashioning rules (e.g. related to trimesters, the viability line, and the “undue burden” standard) that are hard to justify constitutionally and even harder to implement practically. Given the Court’s current six-member conservative bloc, it appears that the preservation of Roe and Casey hinges largely on the justices’ willingness to put such considerations aside and stand by precedent.
Stare decisis is a conservative principle—conservative in the sense of prizing continuity and predictability and preferring incremental to dramatic change. Justice Brett Kavanaugh often votes with Chief Justice John Roberts (renowned for his cautiousness) and has developed a reputation for restraint during his time as a judge and as a key swing vote on the high court. It would have been reasonable to expect Kavanaugh to keep a poker face during oral arguments in this polarizing case and, to the extent he showed his cards, to display sympathy for arguments in favor of preserving Roe and Casey for the sake of stability.
But Kavanaugh’s questions and comments were not only the most surprising and revealing of the entire hearing, they also upended the conventional wisdom about the role precedent might play in this case. His comments about the essential role of self-government in the American system—and how they were met by those defending a capacious, judicially enforced definition of liberty—have important implications for today’s intra-conservative legal debate.
Reliance on Precedent
The main argument made by the attorney for Jackson Women’s Health Organization and the U.S. Solicitor General (and the dominant theme in the amicus briefs opposing Mississippi’s law) was that Roe and Casey are settled law and must be maintained. It was repeated that Roe has stood for nearly 50 years, that Casey reassessed and reaffirmed Roe’s central holding, and that the Court’s reputation would suffer grievously if it overruled such a longstanding, watershed area of law.
The three progressive justices were sympathetic to Jackson Women’s case, particularly its reliance on precedent. Justice Stephen Breyer stated that overturning precedent due to political pressure would subvert the Court’s legitimacy. Justice Elena Kagan argued that stare decisis prevents the public from thinking key rulings are subject to change any time the Court’s membership turns over or it faces an advocacy campaign. Justice Sonia Sotomayor asked if the Court could survive the “stench” caused by giving the public reason to believe constitutional interpretation is a political act. By the time Chief Justice Roberts questioned the standards for determining if previous cases were wrongly decided and searched for a way to uphold the Mississippi law without overturning Roe and Casey, it appeared that the Court’s taking stare decisis seriously meant that it would preserve those precedents.
Until Justice Kavanaugh’s questioning.
Kavanaugh’s view was nearly the opposite; he argued that taking the history of stare decisis seriously requires acknowledging that many of the Court’s finest moments came when it overruled precedent. He cited cases related to ending racial discrimination, protecting voting rights, strengthening the rights of the accused, and more. He called such decisions “important” and “consequential” and underscored that America “would be a much different place” if the Court had acquiesced to those arguing for deferring to precedent. The subtext was clear: Kavanaugh was making the case to any of his colleagues nervous about overruling Roe and Casey that the passage of time can bolster the reputations of those courageous enough to overturn poor decisions.
Kavanaugh’s line of argument was not entirely out of the blue. In the 2020 case Ramos v. Louisiana, in which the Court struck down an earlier decision related to jury convictions, Kavanaugh wrote a concurrence listing prominent decisions that had been overruled. He also offered a framework for assessing which wrongly decided cases warranted discarding. His opinion explained why deference to prior decisions is generally important, particularly in statutory cases. The opinion read at the time as a temperamentally conservative justice new to the Court explaining the value of accumulated wisdom and continuity and attempting to systematize an approach to assessing precedents.
But in light of his comments during the Dobbs’ hearing, Kavanaugh’s Ramos concurrence reads differently. It is now conspicuous that he noted that all current justices have voted to overturn precedent in recent terms and that the Court recognizes that stare decisis is not an “inexorable command.” He called Brown v. Board of Education (overruling the dreadful Plessy v. Ferguson) the “most important and greatest decision in this Court’s history.” And he noted that in constitutional cases stare decisis is less forceful because (citing former Justice Sandra Day O’Connor) only a constitutional amendment or an overruling can unwind a badly misguided Supreme Court decision (note: Roe and Casey are constitutional cases.) And his precedent-assessment system (which considers whether a prior decision was egregiously wrong, whether it has caused serious problems in law and real life, and the extent to which it has generated reliance interests) can give backing to those voting to overturn prior cases. Now, it seems like Kavanaugh’s Ramos concurrence is tailored to undermine Roe and Casey—and convince his colleagues that overruling those decisions is the right thing to do.
A Question of Autonomy?
During the Dobbs oral argument, Kavanaugh’s listing of overrulings elicited swift, similar responses from Justice Sotomayor and Solicitor General Prelogar, who was arguing in support of Jackson Women’s. Sotomayor replied that when the Court has been celebrated for overturning precedent it is almost always because a prior decision had wrongly sided with government authority and the superseding decision applied (some might say created) an individual right. Kavanaugh’s list “involved us recognizing and overturning state control over issues that we said belong to individuals.” Prelogar agreed, arguing “in the vast majority of those cases, the Court was actually taking the issue away from the people and saying that it had been wrong before not to recognize a right.”
The specific implication of that response is that the Court should not invoke the celebrated history of overruling precedent in Dobbs because doing away with Roe and Casey would mean curtailing individual liberty in favor of more government power. But the broader implication of this response is that there is a one-way ratchet—that liberty always grows over time, or at least that the Court does right in the biggest cases by siding with personal autonomy against state authority.
That kind of thinking marked the judicial activism often associated with the mid-20th century Warren Court, which cast the federal judiciary in larger and larger roles in public life, primarily by discovering rights previously unknown. Though associated with the political left, that era’s liberty-first judicial assertiveness has a modern right-of-center analogue, the “judicial engagement” movement, the refusal of courts “to defer to the government simply because it is the government.” It aims at “keeping government in check” and advocates “the proper role of the courts in enforcing constitutional limits on the size and scope of government.”
Kavanaugh made a traditionally American-conservative argument in favor of republicanism or self-government: The people, through democratic processes, should rule; and they, not judges, should be the ones to imbue policy with a moral dimension.
In combination, this judicial liberalism on the left and judicial libertarianism on the right have engendered a recent backlash aiming to create a new jurisprudence of strong governing—one that would more often elevate state authority over liberty. Though there are different strands of thought along these lines, they are similarly judicially activist. For instance, they would encourage judges to read into the Constitution’s vaguer phrases, including the Preamble, elements of natural law, or classical or faith-informed views of human flourishing and the common good. Courts would then approve more aggressive action by local-, state-, and federal-level political branches and, in some instances, mandate more aggressive government behavior.
These new statist theories of jurisprudence appear to be motivated by a belief that the dominant approach to conservative legal thinking (originalism/textualism) is methodological, not substantive; it is values-free or at least values-lite. For instance, by trying to discern the original public meaning of constitutional provisions, many of which are about governing process (e.g., federalism, separate branches, due process), originalists can be agnostic about governing content, caring more about how governing is done than what government does. Likewise, in striving to accurately interpret the language of statutes, textualists can be indifferent to the policies advanced by statutes, caring more about courts’ getting the text right than lawmakers’ getting the policy right.
The Value of Self-Government
Kavanaugh’s comments offer a way to avoid all variants of judicial activism while recognizing that law-making is not and should not be values-free. In short, Kavanaugh made a traditionally American-conservative argument in favor of republicanism or self-government: The people, through democratic processes, should rule; and they, not judges, should be the ones to imbue policy with a moral dimension.
Kavanaugh began this argument early in the hearing by restating Mississippi’s position. Kavanaugh asked if he understood the state’s view to be that the Constitution is “silent, and therefore neutral, on the question of abortion,” meaning it neither requires the government to allow abortion nor requires the government to prohibit abortion. “In other words,” Kavanaugh asked, “the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process?” Mississippi’s attorney agreed.
Later, in questioning the attorney for Jackson Women’s Health, he again spoke for Mississippi, saying that he understood the state’s position to be that Roe and Casey have forced the Court to take sides on abortion when the Constitution is silent on “the most contentious social debate in American life.” Instead, the Court should be “scrupulously neutral” and leave abortion “to the people, to the states, or to Congress.” In questioning Solicitor General Prelogar, he made a related point: Valuable interests are at odds in this debate, and the Court need not be the arbiter given the Constitution’s silence. The people can resolve this for themselves, meaning in different locations they will weigh different arguments differently and reach different conclusions.
Justice Kavanaugh’s argument in favor of self-government was of course in the context of this particular case, but it has broader applications. Justice Sotomayor and Solicitor General Prelogar signaled they understood the ripples of Kavanaugh’s effort by trying to cast the history of overruling stare decisis as the history of liberty triumphing over state authority. But today’s common-good originalists and common-good constitutionalists are not the first to raise concerns about liberty-first jurisprudence. Central to Mary Ann Glendon’s Rights Talk, Alexander Bickel’s “counter-majoritarian problem,” defenses of the 10th Amendment and the “republican form of government,” and the opposition to the Lochner era and the Warren Court’s excesses is the conviction that the people have the right to govern themselves. Democratic deliberation and decision-making are not merely good for governing; they are also protected by the Constitution unless they run afoul of clear constitutional provisions or rights deeply rooted in tradition and history. They deserve a Court willing to preserve them.
Even if Kavanaugh were to have conceded Sotomayor’s and Prelogar’s contention that overruling precedent has primarily occurred when the Court expanded individual liberty, that does not mean that this must be the practice moving forward. The Court, Kavanaugh might have said, could decide their predecessors sometimes egregiously erred on the side of state power and sometimes egregiously erred by constraining legitimate self-government. Chief Justice Roberts, in perhaps the most curious moment of the oral argument, seemed to suggest the possibility of this very shift.
How Wrongly Decided?
In questioning Mississippi’s attorney, Roberts conceded that he has never understood how to decide if a prior Court’s ruling was wrongly decided. Should today’s Court use today’s legal approach to evaluate precedent, or should it use the legal principles and doctrines of the era when that prior case was decided? Roberts didn’t want his point about the liberal judicial-activism era to be missed, so he explained: “There are a lot of cases around the time of Roe,” he said, “that went through exactly the sorts of things we today would say were erroneous.” In other words, justices of that rights-expanding (or rights-creating) period are now understood to have made mistakes. “If we look at it from today’s perspective, it’s going to be a long list of cases that we’re going to say were wrongly decided.”
It is possible, even probable, that Roberts’ observation was an attempt to pump the brakes on any conservative-bloc effort to go on an overruling spree. That is, Roberts likely meant that fixing that era’s mistakes would be an extensive enterprise that could destabilize the law so the Court should just let most of those mistakes be. But perhaps others will see Roberts’ observation as an invitation: The reason the history of overturning precedent is weighted so heavily toward liberty-expanding cases is not because prior Courts only erroneously protected government authority; it’s because the Court has been unwilling to overturn precedents that erroneously expanded individual liberties. Some may seek to rectify that imbalance—beginning with Dobbs.
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