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The recent leak of a draft Supreme Court opinion overruling Roe v. Wade has prompted many commentators to charge that a hyper-politicized, conservative Court is on the verge of losing its legitimacy and plunging America into a constitutional abyss. Should the draft become the Court’s ruling, they argue, it would threaten a wide range of basic rights and perhaps the rule of law itself.
These are dire assessments, reflecting the country’s intense, long-standing divide over the issue of abortion. But they don’t stand up to scrutiny.
Consider first the fact of the leak itself in the Mississippi abortion case now under review, Dobbs v. Jackson Women’s Health Organization. It is a huge leak. Never before has a full draft, footnotes and all, of a would-be majority opinion seeped out to the world while a Supreme Court case of major moment was still under consideration. But based on what we now know, the leak of Justice Samuel Alito’s draft is less troubling than several previous episodes in Court history, in which various justices themselves blabbed either in the moment or soon after a decision. At present, there is no evidence that any justice was directly involved in delivering the draft to Politico.
Nor is there anything unusual in the leaked draft’s treatment of precedent. Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. Over the last century, the Court has overruled itself about twice a year—roughly the same rate at which the Court has overturned acts of Congress.
Sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.
Precedents fall for many reasons. Sometimes the world changes in ways that mock the logic and expectations of the old ruling. Sometimes opposing lines of cases evolve and clash, and something must give. Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.
In 1954, in Brown v. Board of Education, the justices rightly buried their predecessors’ 1896 ruling in Plessy v. Ferguson, which had proclaimed the dubious doctrine of “separate but equal.” The best argument for this burial was that the Constitution really does promise racial equality, and racial segregation—American apartheid—was not equal. Likewise, the New Deal Court properly repudiated dozens of earlier Gilded Age cases that read property and contract rights far too broadly and in the process invalidated minimum-wage, maximum-hour, worker-safety and consumer-protection laws of various sorts—laws that are now seen, quite rightly, as perfectly proper.
The liberal Warren Court also overruled a staggering number of precedents, introducing now familiar terms to our constitutional lexicon. Mapp v. Ohio (1961) dramatically expanded the “exclusionary rule,” Reynolds v. Sims (1964) sweepingly mandated “one person, one vote,” and Miranda v. Arizona (1966) required the now iconic “Miranda warning.” These cases and dozens like them jettisoned earlier settled precedents that, in the minds of the justices, mangled the Constitution. As law professor Philip Kurland once wryly observed, “the list of opinions destroyed by the Warren Court reads like a table of contents from an old constitutional casebook.”
Today, the Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft. (Full disclosure: The draft cites me and several others as constitutional scholars who oppose Roe but personally support abortion rights.) Even the late Justice Ruth Bader Ginsburg was sharply critical of the decision.
In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of “life, liberty or property, without due process of law”—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s “due process” argument textual gibberish.
Constitutional history also cut hard against Roe. When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion. Virtually every state back then prohibited abortions. Roe likewise ran counter to state laws still on the books almost everywhere in the 1970s. The opinion clumsily cited various earlier precedents involving “privacy” rights related to contraception and erotic expression, but in a devastating concession, the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter “inherently different” from all previous privacy cases. And Roe said nothing, amazingly, about the relationship of abortion rights to women’s equality.
Does Justice Alito’s draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court’s precedents on contraception and interracial marriage?
Supreme Court nominee Robert Bork at his 1987 Senate confirmation hearing.Photo: Charles Tasnadi/Associated Press.
As a constitutional scholar at Yale and later as an unsuccessful nominee to the Supreme Court, Bork denounced a landmark contraception case, Griswold v. Connecticut (1965), in which the Court declared unconstitutional a Connecticut law criminalizing the use of contraception, even inside the marital bedroom. Bork considered the law “nutty” but argued that there was no broad constitutional “right to privacy,” as the Court had declared in its ruling.
But there were other, more conservative grounds for the Griswold decision. In an earlier case involving the same Connecticut law, Poe v. Ullman (1961), Justice John Marshall Harlan explained why the issue was simple for a traditionalist such as himself: “The utter novelty” of the Connecticut law was “conclusive.” No other state had ever “made the use of contraceptives a crime.”
In the 1972 case of Eisenstadt v. Baird, the Court extended Griswold to invalidate a Massachusetts statute that banned the distribution of contraceptives to unmarried individuals. By then, such laws were fast becoming outliers in America, rarely enforced even if on the books. Today, no state or political party is seriously trying to undo this precedent. In his 2006 Senate confirmation hearings, Justice Alito, a traditionalist self-consciously in the Harlan mold, minced no words on the issue: “I do agree with the result in Eisenstadt.” His leaked draft opinion in Dobbs says much the same thing.
Justice Alito has never said anything remotely similar about Roe. For traditionalists, there is an essential difference between the contraception and abortion cases. Whereas the Court in Griswold sided with 49 states against the outlier Connecticut, the Court in Roe invalidated the laws of at least 49—perhaps all 50—states. The Dobbs draft takes pains to cite this stunning fact.
In keeping with a long line of cases and the spirit of the written Constitution, Justice Alito notes that rights which are neither explicit nor implicit in the Constitution’s text and history generally need strong roots in the mores and practices of the American people. One way to measure these mores and practices is to count state laws: How many states recognize a putative right and how many try to abridge it? How often and how strictly are laws on the books in fact enforced?
Consider another landmark Warren Court case that the Dobbs draft cites with implicit approval, Loving v. Virginia, which struck down laws against interracial marriage. The Court’s opinion expressly noted that by 1967—the year the case came down—more than two thirds of the states allowed interracial marriage. Many of the rest allowed interracial couples to marry elsewhere and then return home as lawful spouses. Today, interracial marriage is even more firmly established as a bedrock feature of American life.
Mildred and Richard Loving were the plaintiffs in Loving v. Virginia, the 1967 case in which the Supreme Court invalidated laws prohibiting interracial marriage.Photo: Bettmann Archive/Getty Images
The ruling in Roe v. Wade, by contrast, has been under fierce and relentless attack for decades in most states. It has been unremittingly condemned in the quadrennial party platforms of one of America’s two major parties, a party that has won half of the presidential elections since Roe. Roe is also decisively different from various contraception and marriage cases because, as Justice Alito’s draft opinion stresses, abortion uniquely involves destroying unborn human life, typically long after conception and implantation.
Perhaps surprisingly, the draft’s logic also buttresses certain important LGBT rights. As the Court emphasized in its landmark ruling in Lawrence v. Texas (2003), which invalidated anti-sodomy laws, such laws were almost never enforced in America against private consensual conduct, but rather only in cases of rape or public indecency. Justice Anthony Kennedy’s majority opinion reported that only 13 states at the time still had laws prohibiting consensual adult sodomy and only four states singled out same-sex sodomy. Even in these outlier states, there was “a pattern of nonenforcement with respect to adults acting in private.”
Justice Kennedy’s later landmark opinion for the Court, Obergefell v. Hodges (2015), which required all states to recognize same-sex marriage, raises rather different issues. The Dobbs draft does not directly challenge Obergefell and purports to limit its own thrust to abortion cases. But the draft’s logic could be seen to undermine the Obergefell decision, which was issued over the dissents of Justices Alito and other conservative justices, who argued that same-sex marriage was not deeply rooted in American tradition.
Every year, same-sex marriage, unlike abortion, becomes more widespread and accepted.
The status of same-sex marriage is obviously changing, however, and such unions are fast becoming a pillar of modern American life. Every year, same-sex marriage, unlike abortion, becomes more widespread and accepted—more deeply rooted and less controversial. And crucially, Obergefell is at heart a gender equality case. Traditional marriage laws discriminated on the basis of sexual orientation—allowing straight people but not gay people to pursue marital happiness. These laws also discriminated on the basis of sex: Patrick was allowed to marry Mary, but Patricia was not.
Tradition and state-counting are sound ways of thinking about unenumerated American liberties, but rights explicitly mentioned in the Constitution—such as the rights of racial and gender equality—warrant stricter judicial protection, even when such rights contradict dominant customs. The Dobbs draft says little—too little—about sex and gender equality. Advocates for reproductive rights also slighted issues of equality in their oral argument in Dobbs, recapitulating one of the biggest flaws of the Roe opinion itself. Later drafts of Justice Alito’s opinion will likely need to take equality issues more seriously as the dissents of the Court’s liberals begin to circulate, no doubt highlighting and criticizing this major lapse.
In the end, Dobbs will probably be decided by a 6-3 vote, with Justice Alito joined by the four other justices who reportedly endorse his draft (Thomas, Gorsuch, Kavanaugh and Barrett). Chief Justice John Roberts, who reportedly is less keen on the draft, will likely uphold the Mississippi law on the narrow grounds that it gives a wavering pregnant woman enough time—15 weeks—to decide. In recent decades, less than 5% of all abortions have occurred after 15 weeks.
So long as abortion remains legal in many blue states—and nothing in the Dobbs draft dictates otherwise—most women who miss deadlines in their red home states should be able to travel to get the treatment they desire. Indigent women will doubtless experience special burdens, which makes it imperative for charities to ramp up assistance for women in distress.
A very different issue, however, would arise were Republicans to sweep national elections in 2024 and then pass a national abortion ban. This is the scenario that should set off the loudest alarm bells for Americans who support abortion rights.
Demonstrators hold up pictures of the justices at a rally for abortion rights outside the Supreme Court, December 2021.Photo: Bill Clark/CQ-Roll Call, Inc/Getty Images
As for concerns about judicial partisanship more generally, we must remember that in recent years conservative justices have repeatedly crossed the aisle to give liberals victories in high-profile cases. This is not an everyday event, but nowhere else in America do conservatives cross over nearly so much when it matters. Thus, Chief Justice Roberts joined liberals to uphold Obamacare in three different cases over the course of eight years and also crossed the aisle to invalidate the Trump administration’s improper treatment of noncitizens in the 2020 census. He also joined liberals to affirm sweeping rights of gay employees in the private sector, in an opinion authored by a Trump appointee, Justice Gorsuch. The chief justice and another Trump appointee, Justice Kavanaugh, also sided with the liberals in little noticed but hugely consequential cases involving the presidential election of 2020.
Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh’s nomination to the Court, remains true: “Americans generally and with good reason view today’s Court more favorably than today’s Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today’s President and Congress say the same?”
In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.
Mr. Amar is a professor of constitutional law at Yale and the author, most recently, of “The Words That Made Us: America’s Constitutional Conversation, 1760-1840.”
Appeared in the May 14, 2022, print edition as ‘The End of Roe v. Wade A Precedent With Weak Constitutional Reasoning’.
Judge Douglas Ginsburg has a passion for civics education. When the Journal was offered an interview with him three months ago, the subject seemed important but dull. By the time we meet in his chambers in Washington on May 13, it has taken on an edge. Days earlier, a few miles away in Virginia, protesters gathered outside the home of Justice Samuel Alito, author of a leaked draft opinion that would overturn Roe v. Wade, the 1973 decision that found a constitutional right to abortion. There have also been pro-Roe pickets at the residences of Chief Justice John Roberts and other conservative colleagues.
Judge Ginsburg, who turns 76 next week, is a senior judge on the U.S. Circuit Court of Appeals for the District of Columbia. He still hears cases in semiretirement and is circumspect at first about discussing current events. But I manage to coax him into expressing a frank opinion: “Roe is clearly an aberration.” Overturning it “would be technically correcting an aberration,” he adds, “but it implicates more than that, because it also raises the question of stare decisis,” the doctrine of standing by precedent.
He doesn’t say how he’d resolve the stare decisis question, and he says he hasn’t read the leaked Alito opinion in Dobbs v. Jackson Women’s Health Organization. But he knows its gist well enough to cite the fierce criticism of it as an example of civic and constitutional ignorance. “So many people think the Supreme Court is something of a legislature,” he says. “They have no real concept of how a case comes to the court, how it’s defined, and what the court’s powers are.”
People think the court is about to outlaw abortion, when in fact overturning Roe “has the effect of leaving that question back to the states, where it was before, in 1973.” Not all states would revert to the restrictions of half a century ago: “New York is not going to be abolishing abortion. Quite the opposite. They’re thinking about providing funds for people coming from a state that is stricter on abortion.”
Americans of all political stripes, Judge Ginsburg says, are woefully uninformed about constitutional matters: “22% of adults can’t name a single branch of government.” The schools no longer impart “an education that encompasses the minimum that a citizen should know about how our government works, why it was structured the way it was, and what their rights and obligations are.”
He launched an online course last year called Civics Fundamentals in partnership with izzit.org, an education nonprofit. He wants to make the U.S. Citizenship Test, administered to naturalizing immigrants, a high-school graduation requirement. The test comprises 100 questions, and he has made 2½-minute explanatory videos on each of those questions as teaching aids, several of which we watch together on a computer in his office.
Judge Ginsburg concedes that most Americans “probably know that they have a right of free speech, and maybe freedom of religion and the Second Amendment right to carry a gun,” though he says they probably learned all that from television, not in school. And few understand federalism, “the whole distinction between local, state and federal government,” which is the basic structural question at issue in Roe and Dobbs.
The protests at justices’ homes are “a significant indicator of just how mistaken people are of the function of ‘the least dangerous branch,’ ” he says, quoting Alexander Hamilton. Judge Ginsburg offers a quick civics lesson, explaining that judicial rulings aren’t “self-enforcing” but depend on the executive branch. Presidents have almost always respected judicial authority. A rare exception came in 1832, when Andrew Jackson is supposed to have said of the chief justice: “John Marshall has made his decision, now let him enforce it.” Judge Ginsburg likens Jackson’s remark to a similar quote, attributed to Stalin: “How many divisions does the pope have?”
Ignorance of basic civics, he says, “makes citizens susceptible to being misinformed easily by the popular media and by conniving politicians.” The latter “are well-informed and know that the court is not supposed to be responding to pressure exerted by demonstrators in front of the building or at their home. But they nonetheless encourage this misapprehension among the public that they are supposed to respond.”
He allows that “I don’t know of any politician who’s said you should go to the homes of the justices. . . . But standing on the steps of the Supreme Court and addressing a rally? It’s not inherently uncivil, but it was, in fact, done in a threatening way by some members of Congress.”
Who does he have in mind? “I won’t name them,” he insists. But on March 4, 2020, Sen. Chuck Schumer, now the majority leader, stood on a sidewalk outside the Supreme Court and declaimed: “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Mr. Schumer apologized after a public rebuke from Chief Justice Roberts. (Mr. Schumer was referring to a Louisiana abortion case, June Medical Services v. Russo, which the court had just heard. The decision ended up going his way, with the chief justice concurring with the four liberal justices on the outcome but declining to join their opinion.)
Targeting justices at their homes is an escalation, which Judge Ginsburg describes as “unprecedented” and “unthinkable, even in recent years.” This development is “unfortunate in many respects, not only for the privacy and security of the justices, which has to be guarded more intensely now,” but also because it encourages misunderstanding about the role of judges. They can’t resolve cases by “holding a finger up in the air to see which way the wind is blowing, let alone having the wind come to their house and blow.”
In 1974-75 Mr. Ginsburg clerked for Justice Thurgood Marshall, who as an NAACP lawyer had successfully argued Brown v. Board of Education (1954), in which the Warren court held unanimously that black children had a right to attend desegregated schools. At least at first, that decision rivaled Roe as the 20th century’s most contentious. “The South was heavily dotted with billboards saying ‘Impeach Earl Warren,’ ” Judge Ginsburg notes. But nobody thought—or dared—to picket the justices’ homes.
Not that the South was an idyll of civility. Most of Marshall’s work as a lawyer involved representing criminal defendants. Every time he did so, Judge Ginsburg says, “he took his life in his hands. He was darn near lynched one time before the police showed up.”
Marshall is “a very interesting character,” Judge Ginsburg adds. “He was basically a conservative. He believed in the law and in American institutions.” He had “disdain for, first, the communists, then the back-to-Africa people, then for marching in the streets . . . the civil-rights demonstrators.” Judge Ginsburg corrects himself and says Marshall disdained the leaders of civil-rights marches: “Marshall said, ‘You go to court. That’s the way to get things done.’ ” A portrait of Marshall hangs in Judge Ginsburg’s office, sketched by “a local African-American artist who’d never met him.”
The judge describes his own legal philosophy as “textualist, originalist, and very conscious of not deciding issues that needn’t be decided.” It’s easy to see why Roe v. Wade irks him. “It’s a vanity for judges to decide something that isn’t necessary to resolve a case and get their views out on the record. So I try to narrow the focus of my decisions and of those of my colleagues, if there’s somebody who I think is venturing into a territory that we needn’t explore.”
Judge Ginsburg cites a “wonderful” book by his friend Mary Ann Glendon, a Harvard legal scholar. “Abortion and Divorce in Western Law” is a study of 20 Western countries that changed their abortions laws contemporaneously—by legislation everywhere except in the U.S. In the other 19 countries, abortion is “not still a burning issue, because when a legislature acts, there has to be compromise,” Judge Ginsburg says. “It’s set up so that nothing can happen unless people compromise.”
That, he says, is the “genius” of representative democracy: “We’re all disappointed on some aspect and satisfied on some other, and we accept that as authoritative because it was reached through a democratic process.” When that process is “arrogated to a nonlegislative body,” it doesn’t have that legitimacy. “In judicial decisions, you don’t typically get a compromise, you get a dissent. Whereas in a legislature you get compromise and a result—or nothing happens.”
In Roe specifically, he says it would have been better to “follow in the tracks of Ruth [Bader] Ginsburg” (no relation), who was his colleague on the D.C. Circuit until she joined the Supreme Court in 1993. In a 1992 lecture she argued, in his paraphrase, that “a narrower decision involving the Texas law” at issue in Roe, “which was very extreme among the states, would have been perfectly sufficient to galvanize the discussion and the legislative process in the states.” This process “was already under way, actually. There was a good deal of activity under the influence of the women’s movement in the state legislatures. Several states had altered their laws. Others were considering doing so and some had decided not to.” The high court “simply truncated” that process.
“Ruth was exactly right,” Judge Ginsburg says. “Please be sure to mention Ruth in this.” (Once on the court, Justice Ginsburg was a consistent supporter of Roe—and its 1992 successor, Planned Parenthood v. Casey—whatever her qualms about its conception.)
Nearly 35 years ago, Douglas Ginsburg came close to a Supreme Court nomination. After the Senate rejected Robert Bork (another D.C. Circuit colleague) in 1987, President Reagan announced his intention to name Judge Ginsburg, then 41, for the seat. But NPR’s Nina Totenberg reported that he had smoked marijuana as a college student and a young professor at Harvard. Such revelations soon became commonplace as baby boomers rose to positions of power. But nine days after Reagan’s announcement and before being formally nominated, Judge Ginsburg withdrew from consideration.
He declines to discuss the episode, saying with a chuckle: “There wasn’t much there, so there’s very little to talk about. It was nine days.” Nor will he be drawn into a discussion of how his jurisprudence would have differed from that of the eventual appointee, Justice Anthony Kennedy. “There isn’t a single major case that Justice Kennedy either wrote or accounted for, for which I’ve sat down and read the briefs. So I really wouldn’t venture an opinion about whether he was doing things different than I would have done.”
Thirty years ago, the last time the high court considered overturning Roe v. Wade, Justice Kennedy joined the 5-4 majority in Casey to let it stand. History, and contemporary civic life, might look very different had there been a Justice Ginsburg in 1992.
Mr. Varadarajan, a Journal contributor, is a fellow at the American Enterprise Institute and at New York University Law School’s Classical Liberal Institute.
Appeared in the May 21, 2022, print edition as ‘The Roe ‘Aberration’ and America’s Civic Crisis.’