Rick Garnett, my colleague, shared these thoughts with me. DobbsI have his permission to post the following:
Oral arguments in the Supreme Court Dobbs This made me reflect on my former boss Chief Justice William Rehnquist. When he was Chief Justice of the Supreme Court, he was also the junior judge. Roe V. Wade was decided—and, two decades later, the Chief Justice when RoeThe “essential hold” of the property was saved. Casey v. Planned Parenthood. While his role in each case was different, his overall position remained the exact same. RoeRehnquist stated in 1973 that he “partakes more of judiciar legislation than constitutional interpretation.” Rehnquist also said that the 1992 document attempted to rescue its “essential holding”. Casey Disagreement requires an entirely new way of analysing the situation, with no roots in Constitutional Law.
Rehnquist’s stubbornness was no accident. Rehnquist believed that Court’s “legitimacy”, was not served by “judicial legislation” in order to preserve an existing precedent. The creation of new rules could lead to “self-engendered problems.” Rehnquist said that the Court could circumvent these difficulties by disavowing existing rules. Roe outright—thus taking the view, “as the Court surely did in both Brown West Coast HotelThat the Constitution’s faithful interpretation enhances the Court’s legitimacy.
Although the justices looked into whether there might be a compromise that would allow precedent to continue, it’s clear that Rehnquist has the better position.
Overruling precedent in our constitution system is frequently regarded as the last resort. It is therefore not surprising that Wednesday’s oral argument was in DobbsChief Justice Roberts appeared to be looking for a compromise. As a Constitutional line, speculations regarding an unborn baby’s viability make no sense to the Chief Justice. However, the Chief Justice asked, “Is there another line the Court can draw? One that will continue to recognize abortion as a constitutional legal right and the other which would allow for a looser standard of judicial oversight of abortion regulations?”
The lawyers for the Biden administration and providers of abortion cut all ties with any mediator. Justice Gorsuch asked the lawyer representing providers whether they believed that abortion was legal. CaseyThe “undue burden” standard of the United States would work if it were not tied to the viability line. However, the Solicitor General stated that this was impossible. When asked by the US Solicitor General, he refused to give any other operative line than viability. The Solicitor General of Mississippi explained that the only way to resolve the issue regarding abortion would be to return it to the people. He also provided sufficient guidance for the lower courts and gave Mississippi the space to allow stable and democratic outcomes to emerge and grow.
Not surprising that attempts to find a compromise came up empty. Mississippi’s alternative argument, that Mississippi’s pre-viability abortion ban isn’t an “undue weight”, was still a valid one. CaseyThat argument, and others like it, have been rejected in every lower court that has considered them. This includes judges (such as James Ho of the Fifth Circuit). DobbsIt is not hard to believe this woman, who no one can mistakenly thinks would be eager to expand the Court’s abortion precedents more than necessary. Sherif Girgis explains that this is because, as Sherif Girgis explains, “if…” Roe Caseyall read fair, and the right they acknowledge is to an abortion “at anytime” Point in pregnancy” up to viability—and that’s a right with which a 15-week prohibition like Mississippi’s simply can’t be reconciled.
You can, of course. Roe CaseyCould always be read Unfairly—altered Post hocto be something that the Court which ruled them couldn’t have understood. Once the Court begins to rewrite its precedents it will no longer be deferring. Comme Chief Justice Roberts memorably stated, “[s]tare decisisThis doctrine is one of preservation and not transformation. Although narrow decisions can be more preferable than broad, courts must make the right decision.
The most controversial issue in society is abortion. It is important for justices to carefully consider whether to rectify the Court’s error. Roe. Oral argument showed that if politics are to prevail, then principle is more important than politics. Justice Kavanaugh argued the best ground: reading the Constitution as “scrupulously neutral” on the issue of abortion. That post-RoeThe Constitution does not support abortion in any way, but it leaves that up to the citizens and their elected representatives.
This has been Chief Justice Rehnquist’s mantra for many decades. Rehnquist is just as right in his warning about “self-engendered challenges”. DobbsAs it was in Casey. We are trying to save some of our “essential holdings” RoeIt would do nothing to protect the Court’s institution legitimacy. Rehnquist stated that the Court’s institutional legitimacy was being threatened by political pressure. He responded by agreeing to RoeIt would appear that the Court is “retreating under pressure” and “at any cost”, thus jeopardizing its legitimacy.
Invoking the Constitution’s judicial role is the best way to establish institutional legitimacy. That means interpreting and not creating the law. This gives us a clear answer. The Constitution that the people have ratified does not provide any special protection for abortion.
Chief Justice Rehnquist is correct in his position. Justices need to remember another fact: If the Court moves outside of the Constitution’s bounds, it not only affects the Court’s institutional legitimacy but also the American people. The Court made other terrible constitutional errors. RoeThis has led to untold human suffering, as well as harming our Constitutions and laws. The Court must stop inflicting harm on the American body and political by the end of its fifty-year experiment with managing abortion regulation.
Reason.com’s first post was Rehnquist and Roberts, Roe