A Different Take On Overruling <em>Roe</em>

Anyone who watched the public reaction to the purloined opinion in Dobbs v. Jackson had to notice one thing: The liberals were on television and social media deploring the likely result in the case; the conservatives were on television and social media deploring the leak.

There’s an asymmetry there. If liberals were tearing out their hair over the demise of Roe, then conservatives should have been doing a happy-dance on the grave of Roe.

Conversely, if conservatives were deploring the leak of Dobbs, then liberals should have been celebrating the leak of Dobbs. Simply writing those words suggests that the conservatives intentionally chose to tilt at a windmill. Of course the leak was improper. And I, at least, currently have no idea who leaked the opinion. I can think of reasons why those supporting liberal, or conservative, or moderate causes might have wanted the opinion to become public prematurely. I won’t speculate.

(Some of the things that I’ve seen written on social media about the leak were just preposterous. A liberal leaked the opinion to endanger the lives of conservative justices? For heaven’s sake: Alito wrote the opinion intending it to be made public the last week in June. Was his plan to endanger himself?

Ketanji Brown Jackson leaked the opinion? She’s not yet on the court and doesn’t have access to the opinions.

Hey, Elon Musk! When you’re in charge, allow people to tweet political beliefs on all sides of the spectrum, but ban morons from social media.)

Where was I?

Oh, yeah: Why were the conservatives deploring the leak, instead of celebrating the demise of Roe?

An awful lot of conservatives must think that it’s political suicide to align yourself with a decision that will result in many states banning abortions. It’s very unlikely that virtually every conservative who was speaking publicly decided independently to deplore the leak rather than celebrate the merits of the draft Dobbs opinion. Whoever writes the Republican talking points must have immediately gotten out the word that sane politicians shouldn’t mention that the impact of Dobbs will be to ban abortions in many states.

Isn’t that odd?

The Republicans have been campaigning on overruling Roe for decades — Trump promised only to appoint Supreme Court justices who would overrule Roe — and, now that Republicans are on the verge of fulfilling their promise, they don’t want to celebrate.

Maybe this will in fact be a potent issue for the Democrats in the midterm elections.

One final historical note: I attended law school about 10 years after Roe came down in 1973.  There was a fairly broad national consensus in 1973 — including the five Republican justices who found a constitutional right to abortion in Roe — supporting the position that Bill Clinton later espoused on abortions: They should be safe, legal, and rare.

There was also widespread criticism of the Roe decision in the casebooks and the classroom. My casebook, at least, quoted some commentator saying that Justice Blackmun had, in Roe, played a game of hopscotch through the Constitution — shouting “Gimme a P! Gimme an R! Gimme an I! Gimme a V! Gimme an A!  Gimme a C! Gimme a Y!” at various times — to gin up a right to privacy that plainly was not mentioned in the actual text of the document. My professor more or less agreed with that analysis.

Many people — including liberals — thought at the time that you had two choices in Constitutional interpretation: Interpret, at least flexibly, the words of the Constitution or let judges decide on their own what the law should be, without reference to any text. Since you can’t know in advance the beliefs of the judge on your case, you’re better off with a Constitution.

Legal thinking has advanced a great deal in the past 40 years. Scholars have come up with better justifications for Roe than Blackmun did. Ideas about how you can reasonably interpret “a living Constitution” — and thus avoid having judges simply adopt their own policy preferences as law — have evolved. The reliance interest in Roe — nonexistent in 1973 and now 50 years old — has changed. But folks should remember what many legal scholars were thinking, and teaching, more or less at the time.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].