Noah Feldman

Ending Roe Is Institutional Suicide for Supreme Court

Modern constitutional law as we have known it ended today.

When the Supreme Court overturned Roe v. Wade and Casey v. Planned Parenthood, it repudiated the very idea that America’s highest court exists to protect people’s fundamental liberties from legislative majorities that would infringe on them.

What the dissent aptly called a “catastrophic” decision is not only a catastrophe for women, who now can be forced to carry unwanted pregnancies to term. It is a catastrophe for all Americans — and for people all over the world who have built their own modern constitutional courts on the US model. The tyranny of the majority won the day.

The right to an abortion was based on the principle of a living Constitution that evolves to expand liberty and equality. That same master principle of modern constitutional law provided the grounding for Brown v. Board of Education, ending segregation. It was the basis for Obergefell v. Hodges, finding a right to same-sex marriage. It is the same principle that undergirds dozens of other decisions establishing rights we today consider fundamental, from sexual freedom to stop and seizure, that were not considered similarly basic in 1791 when the Bill of Rights was ratified or in 1868 when the 14th Amendment was.

In place of the living Constitution that protects liberty and equality from the tyranny of the majority, the court in Dobbs v. Jackson Women’s Health Organization announced a Constitution that only protects rights that already existed in the distant past. The majority considered it irrelevant that the people who ratified the original constitutional provisions did not include women, whose rights are at issue in Dobbs and whose equality is derogated by the decision. According to the majority, the dead hand of the past rules our constitutional future.

It is no exaggeration to say that the Dobbs decision, written by Justice Samuel Alito and joined by four other conservatives, is an act of institutional suicide for the Supreme Court. The legitimacy of the modern court depends on its capacity to protect the vulnerable by limiting how the majority can infringe on basic rights to liberty and equality.

The Dobbs majority not only takes the court out of that business. It holds that the court should never have expanded the protection of liberty and equality in the first place.

The most basic argument of the Dobbs decision is that, in 1868, states did not consider abortion a fundamental right. That is accurate, as the magisterial dissent, co-authored by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, acknowledges.

But in 1868, there was also no clearly established right to contraception. There were no Miranda rights to protect arrestees. There was no right to choose your own sexual partner, let alone to marry the person you love. And there is no definitive historical evidence that the people who ratified the 14th Amendment thought that doing so prohibited segregation. If you take Dobbs’s logic seriously, all the landmark decisions establishing these rights are wrong.

Will the court now undertake a major effort to revisit these core rights?

Alito’s majority opinion, which is not significantly different from his leaked draft, tries to suggest the court will not do that. Its only basis for that suggestion is to say that abortion is “unique” because it involves life. Justice Clarence Thomas, in a separate concurrence, called openly for revisiting rights to sexual freedom and gay marriage. The dissenters argued cogently that it is now open season on those and similar basic rights.

It is hard for me to imagine that the rest of the conservative justices actually plan to roll back many of our most fundamental rights. Unfortunately, that hardly matters. State legislatures can and will now pass laws that violate or eliminate those rights. The lower courts will have to adjudicate them. Ultimately the Supreme Court will have to weigh in again.

The reason all this will happen is that the court didn’t just overturn Roe. By overturning Casey, it called into question the core idea that the justices follow precedent. Casey stood for the idea that the court would uphold its past decisions absent a major, transformative reason to do so. Under Casey, lower courts would leave precedent in place. That norm is now gone. It’s open season on fundamental rights.

Finally, a dead, non-living Constitution is a catastrophe because history doesn’t actually limit the justices’ discretion. Originalism was supposed to deliver judicial restraint. It doesn’t. The majority can read history however it wants — and does. A conservative majority with no respect for precedent could easily be the most activist court we have ever had.

In short, the modern Constitution will never be the same. Neither will the Supreme Court. Dobbs will go down as one of the worst decisions in the court’s history. Dobbs reverses rights on which the whole country has relied for half a century. The court has never done that before. The consequences will be disastrous — and far-reaching.