Dobbs and the Search for the Conservative Judge, Revisited
Now that the opinions for Dobbs v. Jackson Women’s Health have come down and Roe v. Wade and Planned Parenthood v. Casey have been overruled, I want to revisit my analysis from last December when I thought about Dobbs through the lens of what it means to be a conservative judge. In that analysis, I followed the words of both Chief Justice Roberts and Justice Thomas, who think about the task of judging in different ways and have different visions of judicial conservatism. I predicted that the outcome of Dobbs would depend on whose vision of judging and whose vision of what it means to be a conservative judge would win out.
So, how does that analysis stack up to the actual outcome in Dobbs? I think it was true as far as it went, but a bit more needs to be said to fill out the picture, especially with reference to Justice Roberts’ concurrence.
First, the easy stuff. My predictions about Justice Thomas were basically correct. I predicted that Thomas would seek to overrule Roe and Casey by arguing that there is no abortion right derived from the Due Process Clause of the 14th Amendment. And indeed, Thomas wrote a concurring opinion that nobody joined, in which he argued that not only is the abortion right not found in the Constitution but that the entire doctrine of substantive due process upon which the abortion right relied is nonsensical. For Thomas, this means that cases like Griswold (contraception right), Lawrence (same-sex intimacy right), and Obergefell (same-sex marriage right), all of which rely on substantive due process, should be reconsidered and ultimately overruled.
As I argued before, then, Thomas’ conservatism has within it a kind of radicalism. His conservatism in Dobbs is a conservatism of the constitutional text, particularly its original public understanding. Even though Thomas respects precedent as a guide to decisionmaking, the value he gives to it pales in comparison to the value he gives to the original public meaning of the constitutional text. This means that his desired approach to certain areas of law, especially substantive due process, is decidedly radical. He is more than willing to jettison all rights that derive from substantive due process tomorrow, if he can get the cases to do so and marshal four justices to join him in his quest. If that approach conserves the original public meaning of the text, it’s radical in its obliteration of Court-established rights.
(While Thomas wrote a solo concurrence, the basic thrust of Thomas conservatism was realized in Alito’s majority opinion. It was a full-scale critique of the Roe and Casey precedents as being inconsistent with the Constitution, along with an extensive stare decisis analysis. The majority opinion is only more restrained than Thomas’ concurrence in its insistence that the other substantive due process rights are not in jeopardy).
Second, my prediction about Roberts’ role in Dobbs was only partially correct. I foresaw that Roberts would try to uphold the 15-week abortion ban while retaining Roe, but for some reason I missed his ambition to rule in a very narrow manner. Roberts agreed with the Court that Roe’s and Casey’s viability line should be jettisoned, arguing that such a line makes no sense. However, he insisted that the Court should only decide the question before it, the question of whether a 15-week ban was constitutional. To do so does not require the Court to overrule Roe, but simply to eliminate the viability line created by Roe and Casey. Instead of the viability line, Roberts argues that the core holding of Roe could be realized in a new rule, a rule that requires states to provide women a “reasonable opportunity” to procure an abortion, an opportunity not denied by a 15-week abortion ban.
The conservatism that emerges from Roberts’ concurrence is a bit trickier to understand. My initial sense from previous opinions and the Dobbs oral argument was that Roberts has a greater respect for precedent than someone like Thomas. That is likely true, but it is not exactly what emerges in Dobbs. To be sure, Roberts wants to preserve Roe in Dobbs, but his desire to do so is as weak as it could possibly be. His conservatism is one of modesty with respect to the legal question at hand, and his desire to preserve Roe is only incidental to that question. In other words, because he does not need to overrule Roe to uphold the ban, he does not need to do two of the things Justice Alito does in the majority opinion: (1) He does not need to argue for why we should conserve Roe and Casey as constitutionally sound decisions and (2) he does not need to engage in an extensive stare decisis analysis that would require him to explain why the relevant abortion precedents should be overruled or not. Neither of these is required, because the 15-week Mississippi abortion ban only requires him to eliminate the viability line, which allows him to retain the core holding of Roe, the holding that women should have a “reasonable opportunity” to obtain an abortion.
Roberts’ conservatism, then, is one of conserving the judicial role such that it only decides the question at hand, ruling in a narrow, modest way and saving more difficult questions for another day. However, his adherence to precedent is not rooted in a love for the precedents he refuses to overrule. Instead, the precedents remain because it would be a move of judicial immodesty (even radicalism) to overrule them when it’s not necessary to do so to decide the case at hand. This is an important point to emphasize. Roberts doesn’t want to conserve Roe because he believes it to be a wonderful precedent. Instead, his conservation of Roe is a conservation by default, an acquiescence to its precedential power in light of his view that the Court need not question the constitutionality of its core holding in Dobbs.
One more thing about Roberts. His move to create a new “reasonable opportunity” rule may be an attempt to conserve Roe, but he does so (as far as I can tell) in a novel way. As far as I know, he’s the first justice to attempt to disentangle the viability line from the right to choose an abortion. That may still be a conservative move, but it is not one that stays lockstep with tradition.
Where does this leave us in the search for the conservative judge? I believe that Dobbs reinforces the difference between the conservative originalism of Justice Thomas and the more modest incrementalism of Chief Justice Roberts. Thomas conservatism won 5 votes in Dobbs, and that decided the case. If the conservative supermajority remains on the Court for a while, the future of American law largely depends on whether his vision will continue to win those 5 votes, especially in substantive due process cases.