The leak of Justice Samuel Alito’s draft majority opinion in the pending abortion case, Dobbs v. Jackson Women’s Health Organization, has generated controversy and commentary along many fronts. Of course, one of the most important questions is whether the draft accurately presages what a majority of the Supreme Court will do when the Justices issue their final ruling, presumably within the next month or so. There have been numerous press reports that Chief Justice John Roberts’ preferred approach has been to uphold the Mississippi abortion-regulation in question but to do so via reasoning that would steer clear of the broader issue of whether the Constitution enshrines a woman’s right to ever decide to obtain an abortion. Justice Alito’s draft, which apparently was circulated with the Court on the assumption that the Chief’s vote was not required to make a majority, rejects such a right and would subject all abortion regulations only to so-called “rational-basis” review.
Given the (almost certain) desire of Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor to preserve (or expand) abortion rights from where they sit right now under Planned Parenthood v. Casey, and the (expected) commitment of Justices Alito, Clarence Thomas, and Neil Gorsuch to Justice Alito’s proposed approach, the swing votes that may be open to some movement are Justices Brett Kavanaugh and Amy Barrett. If either of those Justices embraced the Chief’s (reported) approach, that approach would form the fulcrum of the Court and in essence become (for the time being) the law of the land. But is there anything else Justice Kavanaugh or Barrett could possibly do that would lead to a less extreme outcome than the approach embodied in the Alito draft?
Two analytic possibilities occur to me, although candidly I admit neither of them is very likely to materialize. Both of these two possibilities build on the stare decisis question presented in Dobbs: When is it legitimate for individual Justices (or the Court as a whole) to continue to follow an earlier ruling that they believe to be wrong as a matter of constitutional first principle? (For these purposes, I assume that Justices Kavanaugh and Barrett believe, as do the Chief and Justices Thomas, Alito, and Gorsuch, that Roe was constitutionally wrong when decided.) The most conventional and consensus justification for sticking with a wrong ruling is one the Dobbs draft itself acknowledged – when overruling a past decision will “upend substantial reliance interests.”
A few of the Justices (especially Justices Kagan and Breyer) have been extolling the virtues of stare decisis a great deal (albeit somewhat selectively) in recent years, very possibly because they have been anticipating Dobbs or another case like it in the abortion realm. Yet these Justices have not done a particularly careful job of discussing the kind of reliance that might properly lead a Court to continue embracing a prior constitutional interpretation that (by hypothesis) is not the best reading of the Constitution (were the Court writing on a clean slate.)
A few years ago, for example, Justice Breyer in his dissent in Franchise Tax Board v. Hyatt, pitched the relevant reliance at a remarkably high level of generality. He wrote:
The people of this Nation rely upon stability in the law. Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. Each time the Court overrules a case, the Court produces increased uncertainty. To overrule a [case] is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.
Thus, for Justice Breyer and those who joined his Hyatt dissent, promoting reliance at this loftiest level of generality is the goal, which would seem to suggest that all instances of overruling would problematically undermine the rule of law. But that can’t be right. The explanations the Court offers in deciding to overrule particular past cases likely matters more—in promoting the reliance we care about—than the frequency with which past cases are revisited. Moreover, if this supercharged version of stare decisis prevailed, then the Court couldn’t easily overrule (or at least justify overruling) very wrong-headed cases like Plessy v. Ferguson (that upheld racial caste) or Bowers v. Hardwick (that permitted criminalization of same-sex sexual activity), to name just a few of the dozens (if not scores) of celebrated overrulings.
Instead, the cognizable reliance has to be more narrowly defined, and has to clearly distinguish true detrimental reliance from mere expectancy. All persons who like a past ruling might expect that this past triumph—whether constitutionally deserved or not—will persist, and they may build that expectation into their mindset. White supremacists probably expected Plessy v. Ferguson’s regime to continue forever. As did homophobic proponents of the law upheld in Bowers v. Hardwick. But that doesn’t mean they relied in a way we need to protect. In law generally, the kind of reliance worthy of protection is detrimental reliance that leaves one worse off than one would have been had the earlier event never occurred. Sometimes, as in contract law, expectation of the benefit of a bargain may often converge with reliance on the deal, insofar as a contracting party may, in reliance on one deal, turn down other deals that would have generated the same benefits. Indeed, in contract settings we think that happens with such overwhelming frequency that we assume it to be true—and give victims of contract breaches the benefits of their bargains—as a matter of course. But in many areas of constitutional law, it is not clear that expectations lead to forgone opportunities, and thus it is not clear that conventional reliance principles warrant the maintenance of rulings that we now think—with the benefit of better understandings of the Constitution—were fundamentally mistaken.
In this regard, the reliance arguments invoked by the majority in Casey, that a generation of people had “organized intimate relationships” and undertaken participation in “economic and social life” in “reliance on the availability of abortion,” were styled so broadly and generically that Justice Alito’s draft opinion in Dobbs was able to brush them aside as “generalized assertions about the national psyche.”
But could more concrete reliance interests in the abortion setting be identified? And how might someone like Justice Kavanaugh (or Justice Barrett) invoke a more concrete kind of reliance in Dobbs to modify the sweeping approach reflected in Justice Alito’s draft? The answer, I think, requires us to focus on all the pre-Roe statutes – laws that were adopted prior to 1973 and that many analysts argue will spring back to life if Roe and Casey are completely overruled. To be sure, there are questions whether statutes that have been unenforced for so long remain valid as a matter of state law, but assuming state supreme courts say that statutes on the books would remain enforceable legislative enactments if and when Roe and Casey are undone, how could members of the Court prevent the statutes’ immediate (re)enforcement?
By focusing on the fact that these laws might have been repealed in the last 50 years, but that the ability and incentive to repeal them was arguably impaired by the Court’s decision in Roe itself. Justice Ruth Bader Ginsburg, in a passage that the Dobbs majority draft itself quotes, described Roe as having “halted a political process that was moving in a reform direction.” So if the Court desires to, as the Dobbs draft puts it, “return the issue of abortion to state legislative bodies,” perhaps an argument can be made that the issue should be returned to those legislative bodies on a clean slate, that is, without older (pre-Roe) statutes remaining on the books and ready to spring back to life. Again, the argument would be that if Roe had not been decided, abortion reformers would be better off today because they would have had the incentive and momentum to repeal old abortion regulations, but did not or could not do so because of Roe’s interference with the political process. Reliance on Roe, therefore, has left those reformers worse off today than they would be had the Roe mistake never been made.
This argument is not, of course, free from difficulty, insofar as abortion reformers perhaps should have been on notice that unrepealed laws can, at least under the federal Constitution, spring back to life. As a general matter, a federal judicial declaration that a statute is unconstitutional (even if it is accompanied by an injunction against the statute’s enforcement) is in reality simply a statement that that court—and all courts that are bound by that court—will refuse to allow implementation of the statute as of that time. When a statute is “struck down,” it is not literally stricken from the statute books; it is simply held unenforceable for the time being—until and unless something changes. If something does change to undo the court’s invalidation—such as a different understanding of the constitutional merits in question by a controlling court—then the statute can be enforced without having to be reenacted, since it remained on the statute books all along. For that reason, one might argue, abortion reformers could and should, in the intervening 50 years, have lobbied for and adopted repeals of these pre-Roe abortion regulations. Indeed, perhaps the political opposition to repeal might have been less forceful during this period since these laws were in some sense at least temporarily moot, in that they were unlikely to become enforceable for most of the last half century. So it is not empirically certain that abortion reformers are worse off now than they would be today had Roe not been decided.
Moreover and related, this kind of “political reliance” (as William Treanor and Gene Sperling called it in a 1993 law review article I recently came across as this kind of possible argument occurred to me) might be present anytime the Court considers overruling a past case in a way that might permit unrepealed statutes to become enforceable again. So the political reliance argument might be dangerously broad for some people.
But the enormity of Roe, and its undeniable (if somewhat speculative) effect on the political processes, could lead Justice Kavanaugh or Justice Barrett (perhaps even joined by some of the liberal wing of the Court in a grand compromise) to invoke political reliance in a distinctive way in this, the abortion, setting. The upshot, once more, would be to “return” the abortion question to the states (and to Congress) to regulate however they would like going forward. But laws on the books in 1973 (and perhaps even some tight abortion restrictions that were passed after 1973 but before it was clear to the world that Roe and Casey were likely to be reconsidered by the Court, and that didn’t draw much political notice or opposition because Roe stood as an abortion-rights safety net) would not, as a matter of federal constitutional protection of reliance interests, be enforceable.
A second, related middle-ground approach would be for Justice Kavanaugh or Justice Barrett to do something similar to what some people (such as Justice Thomas) say Justice Sandra Day O’Connor’s majority opinion did in the famous Grutter v. Bollinger affirmative action case in 2003: allow a (perceived) constitutional mistake (there, permitting race-based affirmative action) to continue for a set period of time (in Grutter Justice O’Connor mentioned 25 years), after which the ruling would effectively sunset, and the “correct” constitutional rule (i.e., the prohibition on the use of race) would go into effect. To be clear, as Evan Caminker and I argued in law review pages not long after Grutter came down, this is not the only or even necessarily the best way to read the language from the Grutter majority. But, as we pointed, out there is some precedent for constitutional sunsetting.
In the abortion setting, that might look like this: One or more Justices (whose centrist view becomes the law of the land) might say that Roe was wrong and should and will be completely jettisoned in the (not-too-distant) future, but to the extent that political reliance interests suggest uncertainty about what the world would look like today had the Roe mistake not been made, the Roe/Casey framework shall remain in force until one or two complete national political election cycles have run their course, so that people can debate the abortion issue and elect legislators and chief executives based (at least in part) on predicted abortion regulation policies.
Interestingly, the case for sunsetting here might be stronger than in Grutter (assuming, of course, one thought that the use of race is constitutionally impermissible as a matter of first principle) insofar as in Grutter the sunset period delayed protection of a right (to be free from racial discrimination) whereas the sunset period here would delay vindication of permissible government objectives (the regulation of abortion). For those who think rights are especially sacrosanct in our constitutional democracy, the phase-in of Roe’s reversal arguably should be an easier sell than the phase-in of constitutional color-blindness.
To repeat, however, I don’t expect either of these approaches (neither of which is free from credible counterarguments) to have much traction in Dobbs itself. But they both are at least worth putting on the table for consideration.