Dobbs, Abortion, and the Search for the Conservative Judge

Oral arguments in Dobbs v. Jackson Women’s Health Organization have passed. Most legal commentators predict the Supreme Court will uphold the Mississippi law under review that bans most abortions after 15 weeks’ gestational age. Many of these same commentators predict the famous (or infamous) precedents of Roe v. Wade and Planned Parenthood v. Casey will be overruled. And while we have many months (probably until June) before a decision is announced and opinions published, why not add to the endless commentary already under way, in view of what would be a monumental event in American political history?

In particular, I want to think about what it means to be a “conservative” judge, not because I’m interested in taking sides, but because among the six justices currently on the Court that usually receive the label “conservative,” considerable dispute exists between and among them regarding their approach to the law. And it’s quite possible that this dispute will shape the final vote count and opinions written when the whole thing is said and done. More generally, though, I’d like to contend that a stable or agreed upon understanding of the term “conservative” does not exist as it’s applied today for judges in the United States.

So, how do we understand what it means to be a conservative judge?

In most cases, since judges tend not to self-identify as conservative or liberal, we have to impose those labels on them. However, in June Medical Services v. Russo, an abortion case from 2020, Chief Justice Roberts and Justice Thomas had a back and forth where they invoke the spirit of Edmund Burke (the father of modern conservatism) but differed over how his ideas should be applied to the legal principle of stare decisis (literally “let the decision stand,” more commonly known as an adherence to precedent). Here’s Roberts:

“This principle [of stare decisis] is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the ‘private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.’ 3 E. Burke, Reflections on the Revolution in France 110 (1790).”

To put it simply: who is Roberts or any other single person (or 5 people) to do away with decades of received wisdom, dozens of precedents that build off of Roe and Casey?

Then Justice Clarence Thomas, dissenting in the minority, responded directly to Roberts:

“THE CHIEF JUSTICE advocates for a Burkean approach to the law that favors adherence to ‘the general bank and capital of nations and of ages.’…But such adherence to precedent was conspicuously absent when the Court broke new ground with its decisions in Griswold and Roe. And no one could seriously claim that these revolutionary decisions — or Whole Woman’s Health, decided just four Terms ago — are part of the ‘inheritance from our forefathers,’ fidelity to which demonstrates ‘reverence to antiquity.’ E. Burke, Reflections on the Revolution in France 27–28 (J. Pocock ed. 1987).”

To put it simply: who did the writers of Griswold and Roe think they were, fashioning a right to privacy and abortion out of thin air? The hubris!

So where is the dispute? It seems the difference between Roberts and Thomas is not about whether they should be conservative judges, but rather what they should conserve as judges.

On the one hand, Roberts’ first instinct is to do whatever is possible to preserve, conserve, and protect the line of precedents that control in a particular case. In his view, this will also help conserve the legitimacy of the Court, since a Court that stabilizes law is good for the country.

By contrast, Thomas’ first instinct is to ask whether the line of precedents in question is itself worthy of conserving and protecting. And that question, as we learn from Thomas in the June Medical case and in much of his decisionmaking, is answered in at least two important ways. First and most importantly, is the case or cases (Griswold, Roe, Casey) consistent with the original public understanding of the Due Process Clause of the 14th Amendment? Do those precedents conserve the text of the Constitution and the constitutional order itself? For Thomas, the answer is clearly no. The second question is whether the right in question (abortion in this case) is part of the history and tradition of the country (itself a conservative instinct). Does it conserve the practices and habits of the nation, or is it a radical departure from them? The answer for Thomas, pre-Roe, is that it’s not.

The question of the conservative judge then comes down to whether your first instinct is to conserve the constitutional text (Thomas) or whether it’s to conserve a line of precedents that control in any given case (Roberts).

What does this mean for Dobbs? I think it means everything. As we witnessed in oral argument, Roberts seems to want to conserve the right to an abortion in Roe and Casey while still upholding the 15-week ban. In doing so, he’ll assume the rightness of those precedents and attempt to come up with a new standard to control abortion law. Thomas, by contrast, will likely argue again that Roe and Casey were erroneous in their reasoning and should be overruled, inconsistent with the Due Process Clause, and out of step with pre-Roe history and tradition.

To put it another way, Roberts rightly recognizes that overruling Roe and Casey will be disruptive. It will NOT conserve or preserve the right to an abortion. It will NOT conserve or preserve a way of life that women in particular have come to rely on. It may push some pro-choice states to provide safe harbors for women from non-pro-choice states to receive funding for travel and abortion procedures. It will be disruptive. You might say — NOT conservative.

So is the conservative approach then to uphold Roe and Casey? Well, it depends on whether you follow Roberts or Thomas, but it also depends on whether you follow Justice Alito’s line of reasoning and questioning in Dobbs’ oral argument. One major reason to uphold precedent is that lots of people have come to rely on that precedent for their lives. As mentioned above, Roe and Casey have created these reliance interests. But as Justice Alito pointed out, so did Plessy v. Ferguson, the now infamous case which codified “separate but equal” as a constitutionally acceptable practice for organizing race relations in the states. As he mentioned, southern states relied on Plessy to create an entire society based on white supremacy. But, as everyone basically agrees, it was an “improper reliance.” To conserve Plessy would be to conserve an utterly unjust system.

The question, then, of what it means to be a conservative judge in Dobbs (and more generally) is not a simple one. However, I think one of the basic questions is clear: do you wish to conserve a line of precedents that people have come to rely on over the last 5 decades, or do you wish to see that reliance as improper and unjust and instead conserve what you see to be a proper understanding of the Due Process Clause of the 14th Amendment, an understanding that does not seek to conserve a right to an abortion?

There may be other reasons justices use to overrule Roe and Casey, but there’s a good chance the answer to the above question will help explain the outcome of the case.