Overturning Roe Would Be Just the Beginning

A self-assured right-wing majority may be ready to radically alter our legal system and destroy the public’s trust in the Supreme Court and the law.

Illustration of a set of scales tipping in one direction.
John J. Custer

About the author: Donald Ayer served as United States attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H. W. Bush.

Should the Supreme Court’s final ruling in Dobbs v. Jackson Women’s Health Organization resemble Justice Samuel Alito’s leaked draft opinion, it will be an unprecedented moment in the annals of the Court. Never before has the Court reversed its own decisions in order to completely eliminate a recognized constitutional right protecting personal conduct—and here one that thousands of people turn to every year. Probably on that account, the overwhelming majority of the American people oppose the action that the Court seems ready to take, which appears likely to lead in the near future to laws totally banning or tightly restricting abortion access in more than half of U.S. states.

But perhaps even more significant than the demise of Roe is what the leaked opinion suggests about where the present Court may be headed. Following the addition of three Donald Trump–appointed justices through nomination processes that were at best highly irregular, five justices now on the Court appear to be in general agreement about the major tenets of a judicial philosophy at odds with much recent Court history. That these five justices also seem to share both great confidence in the correctness of their own views and a militant lack of concern about the effects of sudden change on the public’s respect for the Court and the law warns of serious ramifications for the weeks and years ahead.

The five justices appear to agree that the legitimate role of justices on the Court is largely confined to the objective application of law to facts, and also believe that jurists who make choices to resolve perceived ambiguities in the law are engaged in legislative conduct beyond their judicial authority. For constitutional law, this allegedly objective approach to judging means seeking out the original meaning of the Constitution—that is, figuring out what was meant by words written long ago with regard to modern realities of which the Founders (and later drafters) were totally unaware. Justice Alito’s leaked opinion, on behalf of five justices, exemplifies this latter approach—because no right of abortion is specifically mentioned in the Constitution, the argument goes, the Supreme Court’s recognition of such a right cannot possibly be proper.

Perhaps the scariest passage in the leaked opinion comes in a discussion of the plurality opinion in 1992’s Planned Parenthood v. Casey decision, which had noted that, even if Roe was wrong, stare decisis commands adherence to its “central holding” that a state may not protect fetal life before viability, because failing to do so would undermine respect for the Court and the rule of law. To the five-justice conservative majority, this is nonsense: “We cannot allow our decisions to be affected by any extraneous influences such as the concern about the public’s reaction to our work. In suggesting otherwise, the Casey plurality went beyond this Court’s role in our constitutional system.” If the approach of this opinion holds, the Supreme Court will at once erase the right to an abortion and, in that very same decision, declare that the Court is foreclosed even from considering the consequences of that action on the public’s trust in the Court and the rule of law.

The plausibility of any claim that a Supreme Court justice should apply their view of the law without regard to how the public will react fades quickly when considered in the context of an impending decision to abolish a long-established constitutional right—or to take any other action that will materially disrupt the predictability and continuity of legal rights and duties. The Court cannot both be the willful instigator of radical changes in the law based simply on disagreement with the views of prior justices, and remain the faithful steward of a legal system that commands widespread trust and respect.

And new justices disagreeing with their predecessors is exactly what is happening here. The plurality opinion of three Republican-appointed justices in Casey reaffirmed the constitutional right to abortion as a form of liberty protected by the Fourteenth Amendment’s language, which says that no person shall be “deprived of life, liberty, or property without due process of law.” The Court’s repeated reliance on the due-process clause as a basis for recognizing substantive rights has long been attacked by advocates of supposedly objective, value-free jurisprudence, because the precise content of the protected activities remains to be defined by judges. In the leaked opinion, Alito, who disagrees from the start with reliance on the due-process clause as a source of substantive rights, nonetheless purports to reject the Casey plurality’s reasoning without disputing its fundamental premises. He does that by rewriting the history of abortion that he says was misstated in Roe, and concluding that a right to abortion is not essential to our nation’s scheme of ordered liberty and thus cannot be protected under the decisions that recognized liberty interests protected under the due-process clause.

Concerns about loss of trust based on sudden radical changes instituted by a new group of justices are not answered by those justices claiming the mantle of objectivity and purporting simply to be interpreting the words of texts and applying a discernible original meaning of constitutional provisions. Sudden major changes in basic rights or rules that result directly from a change in judicial personnel are a problem regardless of the theory invoked to justify them.

More fundamentally, though, any random selection of Supreme Court decisions disproves the claim that the interpretive tools of original meaning and textual literalism actually offer a value-free way for the Court to resolve the cases before it. That is mainly because the tiny percent of filed cases that the Court actually decides are those presenting the most-difficult legal issues, where multiple courts have disagreed and no simple resolution is possible.

Also, many texts are ambiguous, and constitutional provisions written more than 100 or 200 years ago have, at best, uncertain intended meanings when applied to the circumstances of modern life. On top of that, many of the most important constitutional provisions—freedom of speech, free exercise of religion, equal protection of the laws, and the prohibitions on unreasonable search and seizure, and on cruel or unusual punishment, for example—provide protection for rights of a certain type that is not unlimited, and whose boundaries are necessarily determined by courts. That can be done only by balancing interests and making sometimes difficult choices, activities that are anathema to advocates of value-free judging.

The Alito opinion’s categorical denial that it, like every other Supreme Court decision, is actually making value choices, and should be attentive to the impact of those choices on public trust and respect for the Court and its work, raises two substantial concerns about where the new majority’s constellation of convictions is likely to lead.

First, the right embodied in Roe and Casey rests on certain ideas about personal privacy that support a collection of other Supreme Court decisions concerning intimate personal and sexual activity, and protecting activities such as contraception use, gay sexual conduct, and interracial and gay marriage. Much of what is said in the leaked opinion demonstrates forcefully the majority’s disagreement with the legal foundation of these rights, and, as the solicitor general argued to the Court, overruling Roe and Casey would seem to “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” The opinion emphatically asserts that abortion is different because another life is involved. But that assurance is little comfort, given the tone and tenor of the present opinion, and the clarity of the majority’s disagreement with the very foundations of the entire right to privacy.

Second, even more consequentially, as has been apparent at least since some quite radical decisions were handed down last term, the five justices listed as joining Alito’s opinion are likely to spearhead changes going far beyond the elimination of these particular rights. Indeed, the greatest threat posed by the new majority involves not eliminating individual rights but elevating newly expanded rights so that they are free from government action, and narrowly reading or invalidating existing remedial statutes, thus impairing the ability of government at both the state and federal levels to function and meet the needs of our challenging times.

Already this term, the five-justice majority, joined by the chief justice, has championed the right to be free from vaccination requirements and has read the statute that created OSHA in an extraordinarily narrow manner to block the agency from mandating vaccination of the employees of major firms. Just recently, following in the path of recent decisions invalidating electoral spending limitations on First Amendment grounds, the same majority struck down an act of Congress limiting to $250,000 the amount that candidates can be repaid when they loan money to their own campaign. In the Court’s view, the corrupt appearance of very substantial post-campaign contributions going directly into the elected official’s pocket to repay a loan was insufficient to justify the limitation enacted by Congress—a value judgment if there ever was one. And pending on the docket, with a decision expected this month, is a case in which the five joiners of the leaked opinion are expected to lighten the regulatory burden on electric power plants by reading narrowly the statutory powers of the EPA, thus dramatically reducing its ability to protect the nation’s clean air and take action to stave off climate change.

Also teed up for decision this month is a Second Amendment case in which a lower court upheld a New York State law requiring evidence of good cause to obtain a license to carry a gun outside the home. Commonsense provisions like this, aimed at addressing our raging epidemic of gun violence, have been enacted in many states. And they have so far been regarded as in line with the 2008 Heller decision, which stated that the Second Amendment does not allow a person to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Nevertheless, the oral-argument transcript suggests that the five-justice majority is likely ready to find even these minimal constraints on gun ownership incompatible with the Founders’ original meaning.

This term’s cases using personal rights to hamstring governmental action build on a number of cases from the previous term, in which the same majority acted in the same way. Among those cases were opinions second-guessing the preeminent powers of state and local government over health and safety policies in order to invalidate rules governing the size of assemblies deemed to offend the free-exercise right to assemble in church. These were the latest and most extreme instances of the conservative justices’ recognition of an extraordinarily broad right of free exercise, which has been applied directly and through the Religious Freedom Restoration Act, including one case last term that limited governments’ ability to impose generally applicable requirements of many types. On top of this, the justices also sharply narrowed the key remaining enforcement provision of the Voting Rights Act.

And so it goes. Opportunities for a willful Court to have its way and fix what it sees as the errors of the past will be limited only by the lawsuits that eager litigants decide to pursue. Already on the docket for next term are two cases in which major Court precedents are on the line, and the views of the Alito-opinion five now seem quite predictable. One concerns the breadth of federal power to regulate the waters of the United States. The other may settle, by flat-out rejection, the fate of affirmative action in higher education, which has occupied the Court in a profoundly important series of nuanced rulings since the 1970s.

Many more cases like these will come. The question is whether enough justices will have the wisdom to realize that their certainty in the correctness of their legal reasoning must be tempered by an awareness that too much change too fast will destroy the public’s respect for the Court and the rule of law. Recent history raises doubt that any will have even a moment’s hesitation.