Eloquence Exemplified In Dissent: Courting the Post-Roe Future

Excerpts from the dissent by justices: Stephen Breyer, Elena Kagan, and Sonia Sotomayor. (Some emphasis has been added.)

After today, young women will come of age with fewer rights than their mothers and grandmothers had. The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away. The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.

. . . The majority accuses Casey of acting outside the bounds of the law to quell the conflict over abortion – of imposing an unprincipled “settlement” of the issue in an effort to end “national division”.

But that is not what Casey did. As shown above, Casey applied traditional principles of stare decisis – which the majority today ignores – in reaffirming Roe. Casey carefully assessed changed circumstances (none) and reliance interests (profound). It considered every aspect of how Roe’s framework operated. It adhered to the law in its analysis, and it reached the conclusion that the law required.

True enough that Casey took notice of the “national controversy” about abortion: the court knew in 1992, as it did in 1973, that abortion was a “divisive issue”. But Casey’s reason for acknowledging public conflict was the exact opposite of what the majority insinuates. Casey addressed the national controversy in order to emphasize how important it was, in that case of all cases, for the Court to stick to the law. Would that today’s majority had done likewise.

Consider how the majority itself summarizes this aspect of Casey:

“The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not ‘social and political pressures.’ There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the court overrules a controversial ‘watershed’ decision, such as Roe. A decision overruling Roe would be perceived as having been made ‘under fire’ and as a ‘surrender to political pressure.’”

That seems to us a good description. And it seems to us right. The majority responds (if we understand it correctly): well, yes, but we have to apply the law. To which Casey would have said: That is exactly the point. Here, more than anywhere, the court needs to apply the law – particularly the law of stare decisis.

Here, we know that citizens will continue to contest the court’s decision, because “[m]en and women of good conscience” deeply disagree about abortion. When that contestation takes place – but when there is no legal basis for reversing course – the court needs to be steadfast, to stand its ground. That is what the rule of law requires. And that is what respect for this court depends on.

“The promise of constancy, once given” in so charged an environment, Casey explained, “binds its maker for as long as” the “understanding of the issue has not changed so fundamentally as to render the commitment obsolete.” A breach of that promise is “nothing less than a breach of faith.” “[A]nd no court that broke its faith with the people could sensibly expect credit for principle.”

No court breaking its faith in that way would deserve credit for principle. As one of Casey’s authors wrote in another case, “Our legitimacy requires, above all, that we adhere to stare decisis” in “sensitive political contexts” where “partisan controversy abounds.”

Justice Jackson once called a decision he dissented from a “loaded weapon,” ready to hand for improper uses. We fear that today’s decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision.

Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this court’s commitment to legal principle. It makes the court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.

“Power, not reason, is the new currency of this court’s decision-making.” Roe has stood for 50 years. Casey, a precedent about precedent specifically confirming Roe, has stood for 30. And the doctrine of stare decisis – a critical element of the rule of law – stands foursquare behind their continued existence. The right those decisions established and preserved is embedded in our constitutional law, both originating in and leading to other rights protecting bodily integrity, personal autonomy, and family relationships.

The abortion right is also embedded in the lives of women – shaping their expectations, influencing their choices about relationships and work, supporting (as all reproductive rights do) their social and economic equality. Since the right’s recognition (and affirmation), nothing has changed to support what the majority does today. Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. All that has changed is this court.

. . .  Texas was one of the fistful of states to have recently banned abortions after six weeks of pregnancy. It added to that “flagrantly unconstitutional” restriction an unprecedented scheme to “evade judicial scrutiny.” And five justices acceded to that cynical maneuver. They let Texas defy this court’s constitutional rulings, nullifying Roe and Casey ahead of schedule in the Nation’s second largest state.

And now the other shoe drops, courtesy of that same five-person majority. . . . Now a new and bare majority of this court – acting at practically the first moment possible – overrules Roe and Casey. It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans. It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the court’s legitimacy.

Casey itself made the last point in explaining why it would not overrule Roe – though some members of its majority might not have joined Roe in the first instance. Just as we did here, Casey explained the importance of stare decisis; the inappositeness of West Coast Hotel and Brown; the absence of any “changed circumstances” (or other reason) justifying the reversal of precedent. “[T]he court,” Casey explained, “could not pretend” that overruling Roe had any “justification beyond a present doctrinal disposition to come out differently from the court of 1973.” And to overrule for that reason? Quoting Justice Stewart, Casey explained that to do so – to reverse prior law “upon a ground no firmer than a change in [the court’s] membership” – would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this court and to the system of law which it is our abiding mission to serve.” For overruling Roe, Casey concluded, the court would pay a “terrible price”.

The Justices who wrote those words – O’Connor, Kennedy, and Souter – they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want justices to deliver. But if there were awards for justices who left this court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those justices up.

They knew that “the legitimacy of the court [is] earned over time.” They also would have recognized that it can be destroyed much more quickly. They worked hard to avert that outcome in Casey. The American public, they thought, should never conclude that its constitutional protections hung by a thread – that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. It is hard – no, it is impossible – to conclude that anything else has happened here. One of us once said that “[i]t is not often in the law that so few have so quickly changed so much.” For all of us, in our time on this court, that has never been more true than today. In overruling Roe and Casey, this court betrays its guiding principles.

With sorrow – for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.

  • L to R, Justices Stephen Breyer, Sonia Sotomayor & Elena Kagan

    This has been excerpted from the US supreme court’s minority opinion in Dobbs v Jackson Women’s Health Organization. It has been edited to remove some legal citations Some highlighting has been added.

2 thoughts on “Eloquence Exemplified In Dissent: Courting the Post-Roe Future”

  1. It took 50 years and tens of millions of dollars for the pro-forced birth forces to arrive at the place we are today. I have no reason to believe it would take us any less to reverse it,

  2. The voters who will make a difference in the 22 and 24 elections are 2 groups: suburban Republican women and the Trump enraged voters.

    The Roe travesty works against the party of the Scotus Federalist Cabal.

    Suburban Republican women overwhelmingly support a woman’s right to abortion, even though they don’t personally favor abortion; Think: their daughters.

    Abortion has been a “red flag” for the “Strangers In Their Own Land” (cf: Arlie Hochschild’s book) voters. In addition to combat fatigue, the absence of a concrete issue like abortion contributes to what is predicted to be lessened enthusiasm for politics in the most rabid and (before Trump) least likely to vote group.

    We who are not so-called-Federalists (in fact they are Confederatists, as they aim toward a states rights political system such as the Confederate States desired) can take heart. So long as we don’t alienate the “independent voters” with hardline slogans tied to ethereal goals dismissive of voters’ here-and-now concerns, the results should be quite favorable. All thanks to the Roe decision.

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