Thursday, December 2, 2021
Here (Our Sunday Visitor) and here (The Volokh Conspiracy) are some quick comments I contributed regarding yesterday's oral arguments in the Dobbs case. In my view, the justices will, and should, jettison Roe and Casey, and adopt the approach for which the late Chief Justice, William Rehnquist, advocated in his Casey dissent. A bit:
To be sure, it makes sense for the court to value stability and predictability in the law. Sometimes, there are good reasons to carry on with a past mistake. And it is important that the court not only be perceived as, but in fact be, a judicial, not a merely political, institution. The meaning of the Constitution should not and does not change simply because its composition does.
The justices who are presumed to be Casey-defenders warned repeatedly, in their questioning, that to return the abortion-regulation question to the political process would damage the court, its standing and its reputation. In fact, the opposite is true: Were the justices to yield to political and media pressure and to concoct yet another abortion-regulation-evaluation mechanism with no basis in the Constitution’s text, their standing as an apolitical judicial body would suffer irrevocably. . . .
At one point during the arguments, Justice Sotomayor observed that many of the most famous cases where the court rejected past precedent involved expanding the rights of individuals. In her view, this fact weighed strongly against undoing the errors in Roe and Casey.
Her view is wrong, though, for at least two reasons. First, reversing Roe will respect the rights of individual citizens to have a say, and to try to convince their neighbors on a fundamental moral and policy question. Next, and no less important, the court’s confession of error would repair the damage done to our Constitution by its earlier ruling that excludes, categorically, the most vulnerable persons among us from the law’s protections. That would not be the end of the pro-life effort, but it would be a welcome step nonetheless.