Just as Roe v. Wade is the representative case of Justice Harry Blackmun’s tenure on the Supreme Court, so too will Dobbs v. Jackson Women’s Health Organization become the emblematic decision of its author, Justice Samuel Alito, Jr.
The stark contrast between the two decisions in their rhetoric, reasoning, and results reveals a great deal about each Justice, as well as the Court that decided each case. This article will provide a brief biographical sketch of Blackmun and discuss his decision in Roe. It then will do the same with Alito and Dobbs. The article will conclude with some thoughts on the Court that decided each of the two cases.
The Journey of Justice Blackmun
Blackmun grew up in Minnesota, where his academic accomplishments took him to Harvard College and Harvard Law School. As biographers have noted, one of his boyhood friends was Warren Burger, a politically ambitious attorney with whom Blackman’s career was intertwined.
Both Burger and Blackmun became prominent attorneys who served on federal courts of appeals—the former on the D.C. Circuit, the latter on the Eighth Circuit—and both became Supreme Court Justices. In 1969, President Richard M. Nixon appointed Burger to replace Chief Justice Earl Warren. A year later, Nixon appointed Blackmun, an appointment Chief Justice Burger supported.
As anyone with even a casual knowledge of Supreme Court history knows, Burger and Blackmun were referred to early on as the “Minnesota Twins”—a nickname that, however much an oversimplification, seemed accurate given their voting records in the early 1970s. Over time, however, that pattern would change, in substantial part due to Roe.
The Long Gestation Period of Roe
Roe emerged in the early 1970s from a number of cases filed in federal court challenging state laws restricting abortion. It was argued twice before the Supreme Court—first in December 1971, then again in October 1972. When Blackmun was assigned to draft the Court’s opinion after the first argument, he had been a Justice for less than two years. Before the end of the 1971-72 Supreme Court term, at his request, the Court ordered re-argument.
Blackmun worked extensively on the decision, holing up at the Mayo Clinic library during the summer of 1972 to research the medical history of abortion and writing a number of draft decisions and explanatory memoranda along the way. In January 1973, the Court issued its decision in Roe. By a 7-2 vote, the Court invalidated the Texas law criminalizing abortion.
Acknowledging that hindsight is 20/20, Roe reads as a conflicted decision. Blackmun sought to accommodate two contradictory positions: that a woman’s right to privacy “encompass[es] . . . the decision whether or not to terminate her pregnancy,” on the one hand, and that the “the State” has an interest “in protecting prenatal life,” on the other hand.
Blackmun’s opinion for the Court attempted to do this by holding that while the constitutional right to privacy, recognized by the Court in a number of prior cases, extended to a woman’s decision to terminate her pregnancy, it also held that this right was qualified by the state’s interest in “maintaining medical standards” and “protecting potential life.”
Blackmun’s attempt to balance these opposing views led the Court to adopt the trimester approach to state regulation of abortion—and to the criticism of Roe that the Court’s opinion reads like a legislative compromise rather than a judicial interpretation of the Constitution. The Court held that during the first trimester, a woman’s abortion decision was left to her and her doctor. Subsequently, until the fetus was viable, a State could “regulate the abortion procedure in ways . . . reasonably related to maternal health” but could not proscribe abortion. Finally, “subsequent to viability,” a State could “regulate, and even proscribe, abortion except where . . . necessary” to preserve “the life or health of the mother.”
The criticism of Roe as judicial “legislation” is part of a broader attack on the “Living Constitution” approach to constitutional interpretation it represented. Proponents argue that the Constitution should, and must, evolve as society evolves. Critics deride this jurisprudential approach as unrestrained judicial activism, giving free reign to the judge’s personal policy preferences.
While this debate continues through the present day, it is worth recalling that the Supreme Court employed it in, among other cases, Griswold v. Connecticut (decided by the Warren Court in 1965) and Roe (decided by the Burger Court eight years later). Moreover, both Griswold and Roe were decided by 7-2 votes. Blackmun’s Living Constitution approach in Roe was within the mainstream of constitutional interpretation when the Court decided the case.
The Legacy of Roe for Justice Blackmun
As Linda Greenhouse shows in Becoming Justice Blackmun, after Roe, Blackmun evolved from a conventional moderate Republican to a liberal in cases involving abortion, capital punishment, and sexual orientation. He steadfastly defended Roe in its entirety throughout his tenure on the Court. Notably, in 1992, Blackmun dissented in part in Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld Roe, because the Court did not retain its trimester approach.
Regarding capital punishment, Blackmun initially voted to uphold the death penalty in cases such as Furman v. Georgia in 1972 and Gregg v. Georgia in 1976. Over time, his views changed and, in a dissent written the same year that he would retire, Blackmun declared, “I no longer shall tinker with the machinery of death” in 1994. He also dissented in Bowers v. Hardwick, the Supreme Court’s 1986 decision upholding a Georgia law criminalizing sodomy. (The Court subsequently overruled Bowers seventeen years later, in Lawrence v. Texas.)
For Blackmun, Roe was transformative. His journey on the Supreme Court provides a parallel with the Living Constitution approach. Blackmun’s views changed as his understanding of law and society, and the Court’s role regarding both, grew.
Justice Alito’s Path to the Supreme Court
Alito took a different route from Blackmun to the federal bench; he followed the path of government service. After graduating from Yale Law School and a clerkship for a federal appeals court judge, Alito served in the Justice Department for more than a decade, holding significant positions in the Department during the presidencies of Ronald Reagan and George H.W. Bush. In 1990, Bush appointed Alito to the United States Court of Appeals for the Third Circuit.
While there are nominal similarities between Blackmun and Alito—both were appointed to federal courts of appeals, then elevated to the Supreme Court by Republican Presidents—the politics of Supreme Court appointments had changed by the time President George W. Bush nominated Alito to the Supreme Court in 2005. A nominee such as Alito underwent rigorous scrutiny by both the Republican President who put him forward and the Democratic Party evaluating him during the Senate confirmation process.
That the process was characterized by greater political partisanship for nominees this century than it was for Blackmun may have strengthened the case for Alito’s nomination. Ever since Ronald Reagan was elected President in 1980, the Republican Party opposed abortion. As the Washington Post recently noted, Alito distinguished himself in the Reagan Justice Department through his work on a case involving a defense of Pennsylvania’s restrictive abortion regulations. (The case was Thornburgh v. American College of Obstetricians and Gynecologists, in which the Court affirmed the Third Circuit’s decision enjoining enforcement of the regulations in a decision written by Justice Blackmun in 1986.)
Justice Alito’s Decision in Dobbs
While the Court decided a number of abortion cases after Alito became a Justice in 2005, it never had the votes to completely overturn Roe until this term. With Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg in 2020, the die was cast. The Court granted certiorari in Dobbs on the question of “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional”—and then, as Chief Justice John Roberts noted in his concurrence, elected to overrule Roe and Casey.
In his opinion for the Court, Justice Alito reasoned that “the Constitution makes no mention of abortion,” no right to abortion is “implicitly protected by any constitutional provision,” and, accordingly, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Because overturning prior precedent is an unusual act, Alito’s decision often is devoid of the respectful tone characteristic of most judicial opinions. Applying a relentless originalist methodology, the Court bludgeons Roe, disparaging its reasoning as “exceedingly weak” and insisting that neither Roe nor Casey involves the sort of “concrete reliance interests” that warrant their retention. (This latter statement is extraordinary, given the fact that, as Greenhouse recently observed in the New York Times, “[t]wo generations of women in this country have come of age secure in the knowledge that an unintended pregnancy need not knock their lives off course.”)
If Roe led Blackmun to evolve as a Justice, Dobbs shows that Alito adhered to the views he held before becoming a judge. The Justice Department lawyer who sought to overturn Roe ascended to the Court to become the author of the judicial decision accomplishing that objective. Alito has not evolved on the Court; he has persevered—and prevailed.
The Courts that Decided Roe and Dobbs
As Greenhouse noted, the Court that decided Roe included five Justices appointed by Republican Presidents in the majority, as did the Court that decided Casey. The Court that decided Dobbs emerged from a more politically partisan landscape. The current Court has six Justices appointed by Republican Presidents, all of whom were in the majority in Dobbs. Only two are over the age of 70, and neither Justice Alito nor Justice Clarence Thomas has indicated an interest in stepping down in the foreseeable future. Those who wish to protect a woman’s right to abortion must heed the Court’s direction in Dobbs and elect representatives who will secure that right.