Some Thoughts on the Leaked Draft Opinion Overturning Roe v. Wade

Supreme Court building in the evening
Credit: Joe Ravi (CC BY-SA)

You have probably read the news from last night. Someone (a law clerk?) has leaked a draft opinion indicating that the Supreme Court is on the verge of overturning Roe v. Wade, 410 U.S. 113 (1973), the case holding that a woman has a constitutional right to abort a pregnancy in the first trimester of the pregnancy and, subject to reasonable regulation, in the second trimester. There is a lot one could say about this news from legal, moral, political, and institutional perspectives. Abortion has, for decades, been one of the big issues in US politics and was one of the driving forces behind the creation of the “conservative legal movement” that led to the composition of the current Court and paved the way for Roe’s apparent demise, as well as one of the most significant issues for women’s rights advocates. So the news is a big deal.

I want to share just three thoughts about the news, one about what it means for precedent, one about the common law, the third about the leak itself. First: what about stare decisis? It’s no secret that the reasoning of Roe was not strong in many people’s view, and there was a lot of criticism of the decision at the time and later, even by people who were sympathetic with the end result of the case. I wasn’t around to experience how Roe seemed to lawyers in 1973, but I have very clear memories of the day Goodridge v. Department of Public Health, 440 Mass. 309 (2003), the same-sex marriage case, was decided. I recall being happy with the outcome but very unhappy with the reasoning. I thought the late Justice Sosman’s dissent in particular was very persuasive. And fundamentally, my approach to judging (hah! like the “approach to judging” of a third-year junior associate meant anything) was, and is, small-c conservative, based on my overall understanding of what the courts are here to do and what the role of the people and the legislature in lawmaking should be. Of course, in 1973 and in 2003, we lived in a world where constructive public deliberation about anything seemed more possible than it does today.

But whether Goodridge and Roe were sound decisions or poorly reasoned decisions, they were decisions that seemed to settle matters. Roe remained controversial, primarily because of opposition to abortion by many Christian churches and groups. But the Court reaffirmed the basic holding of Roe, albeit using a viability standard rather than a trimester framework, in Planned Parenthood v. Casey, 505 U.S. 833 (1992). The opinion of the Court in Casey, written by three Republican appointees, began: “Liberty finds no refuge in a jurisprudence of doubt.” Justice Alito, the justice apparently assigned to write the majority opinion, writes that Roe was “egregiously wrong” when decided. Maybe so. But what happens now when, someday, the political tides turn and the Justice Alitos are in the minority on the Court? Does a future Justice Sotomayor get to write that Dobbs (the new case) was “egregiously wrong” when decided? What about other cases that future justices might think, with very good reason, were “egregiously wrong?” (Citizens United, Heller, and Hobby Lobby are the three that come to my mind). I am used to senators flip-flopping on the procedural rules of the Senate depending on which party is in the majority, but can we really have a Supreme Court that acts that way? It’s a catastrophic mistake and a big blow to the legitimacy of the Court, I think, to do what a majority of the Court seems intent on doing.

Second, the common law. The draft opinion is filled with references to Blackstone, Bracton, Coke, and other important common law treatises, as well as to early common law decisions. I love that stuff, and if I had my way, the bar exam would be filled with questions about the differences between the writ of right and the assize of mort d’ancestor or about the procedural steps that ended in outlawry or whatever. (Kidding! Kind of.) I have never understood why the right wing of the Court simultaneously tries to rest its decisions on the great common law tradition while refusing to treat the Constitution like a product of the common law, instead treating it like the Napoleonic Code and their own role like the judges in the civil law world rather than their predecessors in the common law world. (Readers might be interested in Justice Scalia’s lecture on this theme, which I actually got to attend in person way back when!) I’m not saying this because I think that Roe was rightly decided at the time; I’m saying it because I wish the Court would be honest about what it is doing and not justify the departure from precedent with a lot of fancy common law citations and learning.

Finally, the leak. I don’t know if it was a right-wing leak or a left-wing leak: there are cases to be made for either possibility. But I do think that a leak like this is very bad and has to be investigated, and the leaker held to account. It’s actually important to the proper functioning of the court that the justices’ deliberations be private. The leak makes things worse, not better.

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