Originalism and Dobbs
Michael Ramsey
Some commentators have suggested that if the Supreme Court, composed of six originalist or originalist-oriented Justices, fails to overrule Roe v. Wade in the pending Dobbs case (to be argued tomorrow), that would be a substantial blow to originalism. (For example, here from former Attorney General Meese and here from Josh Blackman).
I think this view is mistaken (or at least, that it should be mistaken). Dobbs is not about originalism. Most mainstream originalists think Roe was wrongly decided on originalist grounds. I assume all six of the originalist/originalist-oriented Justices think so. (Jack Balkin famously argues that Roe can be defended on originalist grounds, but he's not a mainstream originalist on this issue).
Dobbs is in part about stare decisis -- should Roe be overruled? Originalism has no consensus answer to that question. Like most if not all theories of constitutional interpretation, originalism has a troubled relationship with prior precedents that failed to apply its principles. Among originalists, views range from fairly strong adherence to stare decisis for non-originalist precedents to complete rejection of stare decisis for non-originalist precedents. Whatever the Court might say about stare decisis and Roe, it is likely to be compatible with some forms of originalism. To say that originalism compels overruling Roe is mistaken; only originalism plus some contested theory of stare decisis would compel overruling Roe.
This is, of course, something of a failure of originalism. To be an effective practical approach to adjudication, originalism needs a broader consensus on its relationship to stare decisis. But this is not something particular to the Dobbs case.
Dobbs is, in addition, potentially a case about broad versus incremental adjudication (if the Court decides that the petitioners should prevail). The question presented in Dobbs is "Whether all pre-viability prohibitions on elective abortions are unconstitutional." The Court could answer that question "no" without addressing the question whether any pre-viability prohibitions on elective abortions are unconstitutional. That is, it could resolve Dobbs without deciding whether to completely overrule Roe. It would have to reject the part of Roe's opinion that declared the viability line, but it would not need to address the broader question whether Roe's basic conclusion -- that the Constitution requires some protection for abortion rights -- should be rejected in its entirely.
Whatever one thinks of this incremental position (and some commentators sharply reject it), it does not pose a question that originalism can answer. Whether to overrule broadly or narrowly is two steps removed from originalism -- it is a question about how to apply stare decisis, not a question about how to apply the Constitution's original meaning.
Thus I don't see why Dobbs, however it is resolved, should be a threat to originalism. The Court could decide to retain Roe's viability line or (more likely) reject the viability line without addressing other aspects of Roe; neither outcome would be contrary to any consensus of originalist views about the relationship between originalism and stare decisis.
UPDATE: At Re's Judicata, Richard Re argues for an incremental approach: Who’s Afraid of Gradualism in Dobbs? From the core of the argument:
The Roberts Court has repeatedly shown a similar instinct for gradualism. Before major decisions on issues like campaign finance regulation and same-sex marriage, for instance, the Court signaled its interest in issuing a transformative ruling long before actually doing so. In the meantime, the Court moved slowly, taking only small steps before bold action. The idea that the Court should give notice before issuing a disruptive decision, which I have called “the doctrine of one last chance,” has many benefits. Giving the losing side one last chance to make its case can clarify how the justices are reasoning through the issue, expose that reasoning to sustained scrutiny and criticism, and prompt the Court to adjust course. Even if the Court follows through on its initial views, providing notice can prompt action by the political branches and help smooth out disruptive legal changes.
The Court’s newest justices have continued the one-last-chance approach. Earlier this year, the Court considered whether to overrule a major precedent on religious liberty. Justice Barrett, joined by Justice Kavanaugh, declined to do so—not because they thought the precedent was correct, but rather because they were unsure just how to replace it. There is no doubt that these justices have thought deeply about religious liberty, yet they still saw wisdom in proceeding cautiously. And that intuition may already have been borne out, given the “difficulty” of later cases. In Dobbs, a similar approach could support a limited holding...
Whatever one thinks of this argument, originalism doesn't play a role in it, one way or the other. Originalism doesn't tell us whether Justices should be gradualists or not.
COMMENT FROM ANDREW HYMAN: I previously blogged here about stare decisis. In a nutshell, the judicial power and duty to give stare decisis great weight comes from the Judicial Vesting Clause. However, the Harmonious Reading Canon strongly suggests that the Judicial Vesting Clause should not be construed in a way that undermines any other clause of the same document, e.g. the Tenth Amendment. This is a primary reason why stare decisis must be weaker in constitutional cases than statutory cases. Another reason is that, from a practical point of view, the Constitution will effectively be amended, if not whittled away entirely, if judges think their decisions doing so are sometimes irreversible. I have a copy of the excellent book The Law of Judicial Precedent, whose authors include two incumbent Justices, and I believe the list of relevant canons of construction (at page 866) is incomplete because it misses the most important one: the Harmonious Reading Canon.
MICHAEL RAMSEY ADDS: For a different perspective, see this post at Public Discourse from David Upham: Casey v. Casey. From the conclusion:
Casey’s legal history of liberty, like Roe’s, was plainly mistaken. And just as the Casey Court set aside Roe’s error and its resulting spurious originalism, the Dobbs Court should set aside Casey’s error, and its unfounded living constitutionalism.