As I listened to almost two hours of oral argument in Dobbs v. Jackson Women’s Health, a case challenging Mississippi’s ban on abortions after 15 weeks, I kept returning to a single thought: Ruth Bader Ginsburg was right. She accurately identified the inherent instability of Roe v. Wade. Because of that instability, it is now quite possible that Roe will be overturned and the ultimate legality of abortion rights will be decided by legislatures, not justices.
When I say “Ginsburg was right,” I’m referring specifically to fascinating comments she made during a Madison Lecture at New York University in 1992, the year before Bill Clinton nominated her to serve on the Supreme Court. In a section of her lecture devoted to “measured motions in third branch decisionmaking,” she made two observations of enduring significance.
First, she quoted Justice Oliver Wendell Holmes, who argued that “judges do and must legislate,” but they must do so “only interstitially; they are confined from molar to molecular motions.” In plain language this means that judges don’t merely interpret laws, they write laws, but when they do so, they should do so slowly and cautiously. Otherwise, as Ginsburg argued, “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.”
Second, as her prime example of this principle, she chose Roe v. Wade, a precedent she called “breathtaking” and contrasted directly with the Court’s “more cautious dispositions” in cases “contemporaneous with Roe” that involved questions of sex discrimination. She noted that the Roe Court did not have to rewrite all of the nation’s abortion laws at a stroke. There was a narrower path, and that narrower path may have been more prudent.
She called the Texas law at issue in Roe the “most extreme brand” of anti-abortion law in the nation (it blocked all abortions except those performed as a “life-saving” procedure for the mother). “Suppose the Court had stopped there,” she mused, and contented itself only with striking down Texas’s law and did not “displace virtually every state law then in force”? Would we have seen the same level of controversy?
Ginsburg’s words did not mean that she wished to reverse Roe, and she went on to defend abortion rights at the high court, but in that brief 1992 musing she forecast precisely why Roe had such a rough day today, and why it appears—based on the questions presented at the oral argument—that five justices at least seem open to reversing the case and leaving most abortion decisions to state legislatures and/or Congress. Her two observations about Roe are summed up in two crucial words—legislate and breathtaking.
The word legislate refers to a key difference between most progressive and most conservative judicial philosophies. Judges steeped in originalism or textualism (philosophies more or less identified with most modern Republican nominees) most definitely do not believe judges should legislate. That is the role of Congress. According to an originalist philosophy, the justices interpret the words of the Constitution and try to resolve ambiguities in their meaning by reference to what’s called the “original public meaning” of the text—what the text was reasonably perceived to mean at the time it was enacted.
More progressive constitutional philosophies do also pay attention to text. It’s a straw man to argue that the text or the original public meaning doesn’t matter at all to a more progressive jurist (Justice Ginsburg herself wrote opinions that read a lot like originalism).
Rather, a better way of describing more progressive judicial philosophies is that the Constitution contains both a textual and a philosophical imperative. For example, in Planned Parenthood v. Casey, the 1992 case that reaffirmed the most essential holding of Roe, the Court’s opinion contained this famous phrase: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”
An originalist recoils at this language and might respond, “The definition of the heart of liberty is an interesting philosophical question, but it is not a judicial question. The judicial question is whether the text of the Fourteenth Amendment protects a right to an abortion.” And since the Constitution does not mention abortion at all—and since there is insufficient evidence that the Fourteenth Amendment was understood at the time it was ratified to protect abortion rights—then abortion is a matter left to the democratic process.
So if Roe is—as Ginsburg noted—more legislative, and a majority of the Court rejects that vision of judicial decision making, then Roe is toast, right?
Not necessarily. This is where stare decisis (the power of previous precedent) comes into play. Stare decisis is the concept that prevents each new justice from using the law as their own personal playpen, voting to overrule every precedent they oppose. A degree of stability is necessary to the rule of law.
But stare decisis is merely a cautionary principle at the Supreme Court. It’s not a formal legal barrier that blocks Court action. And thank goodness for that. Otherwise we’d be left with some of the worst rulings in Supreme Court history as the law of the land. During the Dobbs oral argument Justice Kavanaugh recited case after case (including Brown v. Board of Education) where the Court repaired damage to our nation’s constitutional structure by reversing harmful Supreme Court precedent.
And that brings us to the word breathtaking. Throughout the oral argument, defenders of Roe argued that reversing the case would be disruptive, that women have relied on the precedent to guarantee access to abortion for almost 50 years. Yet Ginsburg’s 1992 remarks demonstrate that Roe itself was also disruptive. It completely ruptured the prior legal regime, and our nation has been living with the fallout ever since.
But breathtaking has a double implication. If you examine the jurisprudence of the nine justices, the six Republican appointees reject—to greater and lesser degrees—the concept of judge as legislator. At the same time—again, to greater and lesser degrees—a number of those same justices also tend to prefer narrow rulings over broad rulings and incremental changes over shocks to the legal system. They’re sometimes apt to nudge, rather than shove, Court precedent toward originalism.
After listening to the oral argument, if Roe is to survive, that’s how it will survive. The Court will choose to nudge. But don’t be surprised by a shove. Why? Because at least five justices may well believe a prior progressive majority shoved first. They made the first “breathtaking” move, and the Court can’t simply continue to consent to such blatantly legislative jurisprudence.
If the Court reverses Roe, it won’t do so because the majority hates women or views women as second-class citizens. Indeed, a woman would almost certainly be in the Court’s majority, and the Court would leave intact the ability of legislatures to protect abortion rights. Instead it will be because the majority embraces a constitutional order that limits the power of the judiciary to write laws and expands the power of the people to define the heart of liberty for themselves.