Right Or Wrong, Dobbs Was Reckless

Regardless of whether you support the policy choice of being for or against abortions, and for most people, it’s some more nuanced point in the middle rather than the extreme “all or nothing” position of ideologues and fools, you may well come to regret the Friday when the majority of the Supreme Court proved themselves as venal as they’re been painted. They didn’t need to do it. They shouldn’t have done it. But they could do it, so they did.

And for Clarence Thomas to then throw fuel on a bonfire, while Ginni cackles, was one of the single stupidest and self-indulgent things a justice has ever done. But, of course, he did it.

Most anti-abortion people are hung up on the question of whether Roe v. Wade was a good decision, a sound legal rationale for a newly established substantive due process right. It wasn’t, which is why they harp on it, but that’s water far under the bridge, by 50 years and a Casey decision. And the irony is that bad decision or not, it came from justices appointed by Republican presidents. If you’re looking to point the finger of political blame, know where it should be pointed.

Five of the seven justices in the Roe majority — all except William O. Douglas and Thurgood Marshall — were appointed by Republican presidents. The votes necessary to preserve the right to abortion 19 years later in Planned Parenthood v. Casey, the Roe follow-up decision that the court also overturned on Friday, came from five Republican-appointed justices.

But does any of this matter? The nature of substantive due process rights is that they largely derive from a bunch of fuzzy and flowery words that ultimately wrap up with policy conclusion that the Court declares to be a right. When it’s a right that most of us want, or at least can live with, we shrug and accept it with only the most passionate zealots refusing to accept the fact that times have “evolved” to the point where the Court creation of a right is fine with the People.

Why abortion remained controversial is unclear. Perhaps it was sincere belief that it was wrong. Perhaps it was elevated to a right before the public was ready to accept it as such. Perhaps it was a wedge that people could latch onto to rally against their adversaries. As I’ve made clear, I thought Roe was a poorly reasoned decision and I think access to abortion is the better policy choice.

In asserting that these justices led the court into grave error from which it must now be rescued, Justice Alito and his majority are necessarily saying that these predecessors, joining the court over a period of four decades, didn’t know enough, or care enough, to use the right methodology and reach the right decision. The arrogance and unapologetic nature of the opinion are breathtaking.

But there is an overarching problem, the reliance factor, stare decisis, the eradication of a “right” created, then taken away 50 years later, that has never happened before and cannot happen if there is any legitimacy to the Supreme Court.

Will the Supreme Court, when next its majority shifts, reinstate abortion as a right, proving every cynic who believes that the Court is just a bunch of political scammers imposing their side’s preferences on a nation by pretending it’s law rather than politics? That’s exactly what Alito just did in Dobbs.

They did it because they could.

It was as simple as that.

Republican presidential candidates have been running on the promise that they would appoint justices who will reverse Roe. Democrats have similarly run on the other side, maintaining Roe. Both are playing politics with the only branch of government for which neither popular will nor politics should play a role, and both have dirtied their appointees by promising a prejudiced outcome in advance of a case or controversy.

But for some lawyers, the aspiration was that these justices may come to the Supreme Court with their legal philosophies, but are smart enough and unbiased enough to consider the arguments and law rather than the usual outcome-oriented shills for the cause. That was my aspiration, and I thought Chief Justice Roberts would be strong enough to hold together this new majority, whose national status was tenuous given who they were appointed by, and arrive at a decision that would not blow up the Court. Roberts failed to do the one job that comes with being C.J., protecting the integrity of the institution. He failed miserably.

And the irony is that none of this was needed. The Supreme Court could have upheld Mississippi’s law without overturning Roe. It was purely opportunistic, provocative and gratuitous. It was just muscles being flexed, because they could.*

The manufactured excuse that the Court takes no position on abortion itself, but merely returns the issue to the states to decide, is a sham. If it brings you comfort, then you’re living in a fool’s paradise. The Court knew that some states would outlaw it, criminalize it. Texas’ insane law smacked the justices in the face. The Court knew that it would produce a schism between blue state that supported it and red states that would criminalize it. This is an untenable situation, both pragmatically and legally.

But most importantly, no matter how much you disagreed with the decision in Roe, no matter how much you believe that abortion should not be a right, no matter how strongly you feel that abortion is wrong, it was the law. It was the law for 50 years. It was the law. The rationale for Roe may have been bad. The rationale for Dobbs is far worse. This was a terrible mistake which we, as a nation, will come to regret.

*My old friend, Josh Blackman, characterizes this debacle as “judicial fortitude.”

Dobbs, which is a triumph for originalism and sound constitutional law, also signals that the court is infused with judicial fortitude. This virtue, more than any particular method of deciding cases, guarantees that the court will steadfastly safeguard the rule of law.

Calling it “fortitude” when you prefer the outcome is a game anyone can play, but Josh neglects to distinguish between what the original decision in Roe should have been with what should be done with a right, once clearly established and given effect for 50 years, when stripping it away.

42 thoughts on “Right Or Wrong, Dobbs Was Reckless

  1. Matthew

    So, you’re saying that Brown v. Board was wrong?

    Segregation now segregation forever is simple justice. Got it.

  2. Freshwater Esquire

    Come now, Scott, it seems a bit unseemly for a cynical character like yourself to be calling out other esteemed members of the bar for proving cynics right. However, I think you can be forgiven because it is apparent you are grappling with a crisis of faith.

    [Ed. Note: I appreciate that the controversial nature of the issue lends itself to raving rando lunatics showing up here to post incoherent rants, but remember that this isn’t reddit. Balance deleted and you are in the running for today’s Billy Madison award.]

  3. MIKE GUENTHER

    The democrats, by which I mean the far left progressives mostly, did this to themselves.

    When it was “Safe, Legal and Rare”, the center left and right were able to tolerate abortion. But for the extreme left, the screeching harridans, it wasn’t enough. They want/wanted abortion on demand at anytime during the pregnancy up to and including post birth abortion. And they wanted taxpayers to pay for it.

    Just like gun control, (I know…apples and oranges), the hard left couldn’t be satisfied with a slice of the cake; they wanted the whole damn thing, including the crumbs that fell on the floor. That’s why they lost.

    People talk about how abortion is legal in most European countries. Sure, but they legislated laws through their respective legislative bodies instead of the courts. Now Americans have the same opportunity.

    Most Americans, right and left, are reasonable people. The extremes on both sides are not.

    * Personally, I don’t believe in abortion, but when it was safe, legal and rare, it wasn’t something I thought about much.

    1. SHG Post author

      Others have argued this point. It doesn’t wash for me. Just because there are crazies on the other side doesn’t compel your side to be crazy in response.

    2. Tom Quinn

      Nonsense. This ruling has been the aim of conservatives since Roe was decide. The BS about “post birth abortion “ had nothing to do with this result.

  4. Markhu

    Lets hope the majority can actually get what it wants through the democratic process, else i worry how this will end.

    1. SHG Post author

      Even if they do, it will be spotty and inadequate. And yet, this won’t outlaw abortion anyway. Rarely has anything so damaging been so pointless.

  5. phv3773

    “Why abortion remained controversial is unclear. Perhaps it was sincere belief that it was wrong.”

    The Roman Catholic church waged 40 war against abortion. It put more emphasis on damning abortion than on spreading the Gospel. (At least in the area I live, priests were required to include anti=abortion language in every rite including, for example, the Baptism of an infant.) And Catholics are a majority on the Court. I marvel at how much credit is given to Republicans and how little to the RC.

  6. Marc Whipple

    It also does not aid the Court’s legitimacy that several members of the Court were appointed quite recently and did not even have the integrity to just no-comment questions about Roe, but sat there and parroted back answers about how it was settled law to provide cover for lawmakers who voted to confirm them. “Perjury” is a nonsensical claim – these are lawyers far too accomplished to have outright said they wouldn’t vote to overturn Roe, and even if they had “new information changed my opinion.” But a lot of people will see a pack of liars and frauds sitting on that bench for a generation.

  7. Hunting Guy

    It’s the law of the land so people need to move on and deal with it through legislation.

    This and the NY gun rights decision are the first shots across the bow so strap in, it’s going to be a bumpy ride.

    I wonder if the Commerce Clause is in their sights.

    (Yeah, focus, rabbit hole, squirrels.)

    1. Miles

      This is the sleeping giant they woke up. The assumtption that they could seize the Court, change the law and get away with it could prove the most dangerously bad assumption the right ever made.

      What neither the hard right nor left seem to grasp is their ideologies are hated by most people, so the harder they push them, the more people hate them and consider their adversaries the least worst choice.

  8. Pedantic Grammar Police

    Thomas is an idiot and a jackass; a right-wing Merrick Garland, but the majority decision was not beyond the pale. Throughout its history, the Supreme Court has made lots of wrong decisions and then reversed them, and those who loved the wrong decisions have gnashed their teeth in horror.

    Before this reversal, left-wing ideologues pressed the previous decision far beyond the limits of reason; grinding up fetuses to make face cream, and advocating for infanticide by calling it post-birth abortion. Now the right wing will take their turn, banning abortion even in cases of rape or incest, and arresting people who travel to other states to get one. Nobody is innocent here, except for the babies.

    The real purpose of this decision, and the ginned-up abortion controversy, is to distract us as the real issues are decided in the dark, for the benefit of our “representatives” and their owners. Divide and rule.

  9. Drew Conlin

    Since I’m categorically unqualified to comment on the merits of the legal debate, am I way off base to see the court as being tone deaf?
    Things are volatile , culture wars, economic instability, inflation etc… I can’t help but think this should have been left as is….

    1. SHG Post author

      There are two issues at hand that have nothing to do with abortion. The first is stability, reflected in stare decisis. The second is institutional integrity, since the judicial branch is the weakest of the three and relies entirely on the public’s acceptance of its decisions.

      1. Mark Schirmer

        Let me be clear: Dobbs was a terrible decision. It undermines self determination, human dignity, and the real effects the patchwork of laws will have on poor and middle class women. As a political decision, my guess is in the short term, its a wash. And, frankly, I understand the opposition to Roe from a legal point of view and from a moral point of view, even though I view the position as wrongheaded in the extreme. What this and the schools case will do is make Middle America slightly more amenable to the Court. It will make the coastal, academic, and media elite nuts arguing the Court has succumbed to politics (as if other decisions are not political).
        It may have some salutory consequences, making it possible to be a Democrat and anti-abortion in some parts of the country. It may refocus and reignite debate on discrimination and equality of the sexes. And it may, for a while, make us refocus on the way society treats women, especially poor and working class women.
        I fear that unless we try to understand each other, it will simply accelerate the divisions in the country. May the gracious goodness grant us the wisdom to listen to each other.

  10. Anonymous Coward

    The people screeching on both sides should have had their congress critters pass a law decades ago either explicitly legalizing abortion or prohibiting it, rather than relying on an easily overturned court decision.

  11. Bryan Burroughs

    Wonder what Justice Thomas has to say about revisiting Loving vs Virginia. I’ll need to go read his concurrence to see if he mentioned it…

    With that snark out of the way, you mentioned not understanding why the abortion issue has had such staying power while other cases such as Griswold and Oberfefell have largely faded into the background. I’d posit that, first and foremost, it’s the termination of human life that makes it so compelling, as there is a very clear loser whose life is literally at stake. Compared to two guys saying “I do” or “hubba hubba,” that’s a significantly different stake.

    As others have pointed out, there’s certainly the issue of the left blowing past the original platitudes of “Safe, Legal, and Rare” towards “do it on a whim whenever, and have the gov’t pay for it”, which no doubt was poking a bear that needed to be left alone.

    I’d also suggest that on the other issues, the public at large was moving in those directions anyway, so possibly overreaching court decisions enshrining those “rights” wasn’t going to receive much blowback. The few stragglers who continued to disagree were just going to have to get over it. But if you are someone who truly thinks abortion is murder, you aren’t likely to “get over it” any more than BLM folks are going to “get over” the next police shooting of an unarmed black guy.

    Finally, Roe just pales in comparison to the other cases in terms of sheer raw judicial overreach. Blackmun didn’t even try to make it look legit, and that no doubt infuriated the unduly passionate folks on the right.

    Thank you for letting me murder these words.

    1. davep

      “As others have pointed out, there’s certainly the issue of the left blowing past the original platitudes of “Safe, Legal, and Rare” towards “do it on a whim whenever, and have the gov’t pay for it”, which no doubt was poking a bear that needed to be left alone.”

      Is this really an issue? Or is it something made up? “Others having pointed it out” isn’t an indicator.

      (Your “pales in comparison” has the opposite of your intended meaning.)

      1. SHG Post author

        It’s not necessarily inaccurate, but it’s hardly the reason. Just more post hoc rationalization.

  12. Fubar

    And for Clarence Thomas to then throw fuel on a bonfire, while Ginni cackles, was one of the single stupidest and self-indulgent things a justice has ever done. But, of course, he did it.

    State, meet Church.

    If I think your act’s icky, it’s sin.
    But that’s only where I begin.
    In the due course of time
    I’ll let states make it crime,
    Build Hell’s bonfires on Earth, throw you in!

  13. CLS

    I met Alito at a dinner party my first year of law school.

    He was a Supreme Court Justice so I was a bit starstruck. First time I’d ever met anyone like that. The icebreaker was the two of us were wearing the same godawful lime green polo shirt.

    For the brief chat we had, I found him to be a likeable sort of fellow who seemed to have a great head on his shoulders.

    Fast forward to yesterday and I’m stuck thinking of a quote by comedian Chrissie Mayr:

    “You think you know someone and then video surfaces on the Internet of them shoving stuff up their ass.”

    1. SHG Post author

      There’s a certain judge who comments here who was Alito’s law school roomie. I wonder if he’s got a godawful lime green polo too.

  14. Hunting Guy

    Rep. Maxine Waters, D-Calif.

    “The hell with the Supreme Court. We will defy them”

  15. Soup Sandwich

    “Why abortion remained controversial is unclear. Perhaps it was sincere belief that it was wrong.” Why so coy? We hate abortion because its killing babies. And that’s why our side isn’t impressed that the privilege has been in place for 50 years. SHG snarked that Matthew brought up Brown v BOE, but why? The comparison holds. Brown v BOE protected the convenience of segregation, Roe protected the convenience of infanticide. 50 years or a 1,000 years, taking that precedent down was the right thing to do

    1. James

      This is precisely right. I love this blog, but this is such a bad faith pseudo-question. If it’s “unclear” to you why abortion has remained controversial, you have demonstrated such little curiosity about what’s going here that your opinion on any of this is all but meaningless. You would not be concerned about legitimacy or stability if the law on the books permitted the random slaying of 800K black people a year. Choose your vulnerable group. But when it’s babies, it becomes this mystical unknowable thing in the air that people for some reason care about.

      1. Miles

        It’s kind of adorable, if a bit goofy, how religious zealots, whether right or left, just can’t see they’re religious zealots so the rest of us can laugh at them.

        1. James

          What’s goofy – and not adorable – is that this kind of cynicism is treated as serious thought. Abortion either is or is not the taking of a human life. That should be taken seriously. To ascribe that necessarily to religious zealotry is to betray an alarming lack of moral seriousness.

          Perhaps you celebrate a cool detachment when confronted with genocide. If abortion is the taking of human life, then its legalization and advancement constitutes a campaign of genocide against the unborn. If it’s not the taking of a human life, then it’s not, and so be it. But the latter position cannot merely be presupposed. It is – or should be – a pretty serious ethical concern for anyone engaging with the debate about abortion rights.

          The goofiest position to occupy in the debate is one in which that ethical concern is treated as frivolous.

            1. James

              I guess for you the question of “life” is settled. OK. But I don’t understand treating that question like it’s not a legitimate question. If the unborn are living human persons, and it’s not at all settled logically or ontologically or even legally that they’re not, then it is totally reasonable that abortion remains controversial and a serious ethical concern for many. That’s not a zealous or extreme position. It’s not only intuitive but morally necessary.

              I’m not trying to be hostile. And I’m not advocating for the pro-life position. I’m simply stating the obvious fact that it is intellectually dishonest and ethically bizarre to treat the pro-life position as quaint or cute or resulting from religious zealotry.

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