The Supreme Court Is Confident It Does Not Need Precedent

This article is the first in a two-part analysis of the recently leaked Supreme Court draft opinion for Dobbs v. Jackson Women’s Health Organization. Read Part Two here.

With Supreme Court Chief Justice John Roberts confirming the authenticity of a leaked draft opinion reported by POLITICO appearing to overturn the Court’s seminal ruling in Roe v. Wade (1973), the political spotlight has again focused on legal challenges to reproductive rights.

While it does not necessarily represent the final opinion that the Court will release in June, the draft opinion in Dobbs v. Jackson Women’s Health Organization nonetheless suggests that Justice Samuel Alito — and at least four other Justices — intend to repudiate the right to privacy encompassing abortion identified in Roe v. Wade (1973). 

The Justices’ reasoning in Dobbs is just as notable as their decision.

Understanding the rationale behind repealing a previously recognized right — a significant action rarely taken in the Court’s history — provides insight into the harm of the potential Dobbs decision overall. Upon closer examination, the reasoning of the draft opinion appears to be flimsy and potentially dangerous in a nation in which a diverse majority of its citizens support the right in question.

According to the draft opinion, Alito’s first argument against Roe is that the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Second, the right to an abortion is not “deeply rooted in the Nation’s history and traditions.” Both of these assessments are flawed, however. Notwithstanding the conservative Justices’ fairly public views on abortion, which are inconsistent with the majority public view, the constitutional arguments undergirding this draft opinion do not align with the mainstream judicial understanding of the Constitution. Instead, the draft ignores settled constitutional precedent and general political and social trends in views on abortion to argue for an anachronistic, originalist interpretation of abortion rights. This article will discuss the first of Alito’s two argumentative shortfalls: his ignoring of Court precedent.

The “Constitutional Provision” Argument

The debate over whether the Supreme Court should protect rights not expressly enumerated in the Constitution stretches back decades. One standard view is that judges should refrain from “aggressive judicial activism” — a principle viewed as restraining judges from deciding based on personal ideology rather than reason — and protect only those rights explicitly enumerated in the Constitution. The other view is that activism is necessary when the Court has a valid interest in protecting a right. Roe’s ruling itself prompts claims of judicial activism, as some scholars have interpreted it as essentially a legislative statute. However, like many landmark Supreme Court decisions, Roe maneuvers delicately between necessary activism and aggressive judicial overreach. 

Roe is no atypical ruling. The Court has repeatedly protected unenumerated rights, like the right to abortion, by utilizing language in the Fourteenth Amendment’s Due Process and Equal Protection Clauses. In line with consequential decisions like Eisenstadt v. Baird (1972) or Loving v. Virginia (1967), Roe uses the Fourteenth Amendment to claim an inherent and fundamental “right to privacy.” Based on Griswold v. Connecticut (1965), the Court determined that the Bill of Rights created a “penumbra” of privacy rights. Consistent with this reasoning, it upheld the right to privacy in making decisions about abortion seven years later — a 7-2 decision that included conservative-leaning judges.

Subsequent Court rulings upheld the central holdings of Roe. For instance, while Planned Parenthood v. Casey (1992) modified the “trimester framework” of Roe by allowing state legislatures to restrict abortion if there was no “substantial obstacle” preventing a person from seeking abortion access, Casey affirmed Roe’s ruling that the Constitution protected the right to abortion. Authored by three Republican-appointed Justices, Casey was intended to be the final word on whether the fundamental right to privacy constitutionally protected abortion. State legislatures could still debate the extent to which limitations on abortion were unconstitutional, but the law compelled them to preserve the right. 

Thus, the Dobbs draft opinion is noteworthy — and concerning — because a Court three decades removed from the ruling threatens to upend duly settled constitutional law. As the Court acknowledged as recently as Ramos v. Louisiana (2020), abandoning precedent jeopardizes the “principle on which the Court staked its authority in the first instance.” Overturning both the Roe precedent and its affirmation in Casey — rulings upon which generations of Americans have come to rely — damages the Supreme Court’s reputation for reasoned judgment.

Why Alito’s Argument Fails

Alexander Hamilton notes in Federalist No. 78, 

“To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”

Although it is not the judiciary’s place to enact legislative ends, the inaction and slowness of the other two branches necessitated a different avenue of democratic due process for abortion rights — the federal courts. Once taken, the Courts generally must rule according to precedent. This principle avoids the “arbitrary discretion” that can lead to questions over judicial legitimacy.

As it stands, the Court’s precedent aligns with the popular opinion and general legal consensus on abortion rights. But states have dangerously used the potential of the Court overruling that precedent to enact “trigger laws” that respond to a judicial decision rather than the present-day will of the people.

Americans have utilized the judiciary branch for decades to protect constitutional and democratic rights including the right to integrated public education and the right to protest in public schools. Though the Court is a democratically unrepresentative body, it must continue to be receptive to the American people when legislatures are not. As stare decisis stands regarding abortion, it aligns with popular views. Therefore, when states intentionally use undemocratic means to thwart accepted constitutional rights and “indispensable” precedents, Justices must inform themselves of the consequences of abandoning those precedents. 

Today, the right to abortion is already legally established; however, elected officials have stated their willingness to challenge such rights against the will of their constituents. Thus, taking the unusual step to overrule a constitutional right and its precedent is dangerous for judicial legitimacy. The Supreme Court Justices who supported the draft opinion should be able to perceive this danger, but they do not seem very interested in this undermining of United States democracy.