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Three decades ago, three Republican Supreme Court appointees reaffirmed Roe v. Wade because of three words: "stare decisis" and "legitimacy." In Planned Parenthood v. Casey, Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter saved the landmark abortion precedent to ensure that people would not view the Court as a political institution.
Three decades later, in Dobbs v. Jackson Women's Health Organization, five Republican Supreme Court appointees found that stare decisis did not justify saving Roe v. Wade. But equally significant was that the majority rejected Casey's conception of "legitimacy." No longer would the Court's legitimacy be tied to public opinion. To the contrary, a legitimate Court must decide, and even overrule cases without regard for popular sentiments. This monumental shift—far more than any new jurisprudence on abortion—will define how far this new conservative Court will have the fortitude to go.
In 1992, the Supreme Court was asked to overrule Roe. Shortly after Casey was argued, there were five votes to reverse the 1972 decision. However, the votes in Casey would shift. Justices O'Connor, Kennedy, and Souter forged a compromise for the ages, or so they assumed: Roe would survive, but the states could restrict abortions after the point of viability. A critical portion of their joint opinion, attributed to Justice Souter, contended that failing to stand by Roe would undermine the Court's "legitimacy." Specifically, if the new Republican appointees could jettison Roe simply because they now had the votes to do so, in the face of immense political pressure, the Court would be viewed as just another partisan branch of government. Overruling such a "watershed" decision "under fire," they wrote, "would subvert the Court's legitimacy beyond any serious question."
This conception of legitimacy may have some intuitive appeal—why shouldn't the Court consider how its rulings would be viewed in such a contentious area? However, the Casey dissenters vigorously disagreed. Justice Antonin Scalia found "frightening" the notion that the majority would avoid a contentious ruling "in order to show that [it] can stand firm against public disapproval." And Chief Justice William Rehnquist warned that "once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself."
For a generation, law students, lawyers, and judges were inculcated with the notion that the Supreme Court must maintain its legitimacy by looking to public opinion. Indeed, Justice Souter's conception of stare decisis was treated as a so-called precedent on precedent. Over the past three decades, virtually every Supreme Court decision that overruled a precedent invoked Casey. And in every confirmation hearing, judicial nominees were asked their views on Casey. The Justices could not escape Justice Souter's shadow. Until now.
In Dobbs, the Supreme Court overruled Roe and Casey. Now, states have virtually unlimited authority to regulate abortions at all stages of pregnancy. And to reach that result, Justice Samuel Alito's majority opinion nullified Justice Souter's linkage of stare decisis and legitimacy. Alito contended that "Casey broke new ground when it treated the national controversy provoked by Roe as a ground for refusing to reconsider that decision."
Casey's understanding of legitimacy, Alito suggested, "went beyond this Court's role in our constitutional system." Stare decisis should not be "subject to the vagaries of public opinion." The Court, Alito explained, "cannot allow [its] decisions to be affected by any extraneous influences such as concern about the public's reaction to [its] work." In the span of a few paragraphs, the majority wiped away a generation of received wisdom about legitimacy.
Indeed, Dobbs redefined legitimacy altogether. Alito quoted from Rehnquist's Casey dissent: the Supreme Court does not "derive[] its legitimacy...from following public opinion," but by faithfully deciding cases based on written law. Justice Alito and his colleagues explained that "[w]e do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey." Nor do they care.
The Justices cast their votes in the face of immense pressure, from both inside and outside the Court. During oral argument, Justice Breyer worried that by overruling "a super case like" Roe, the people will "say, no, you're just political, you're just politicians." He warned that such politicization will "kill[] us as an American institution." Justice Sotomayor stated the issue more bluntly. She remarked that sponsors of the Mississippi law limiting abortion after 15 weeks supported it because of the "new Justices on the Supreme Court." Sotomayor asked, "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" The Court's progressives were imploring the conservatives to avert a Souter-esque legitimacy crisis. Yet, these pleas went unanswered.
Over the ensuing months, the external pressure would be cranked up. In late April, the Wall Street Journal editorial page speculated that Chief Justice John Roberts was trying to "turn" votes to a middle position that would save Roe. A few days later, Politico published a leaked copy of the draft majority opinion that overruled Roe.
In the wake of these reveals, an unprecedented campaign to pressure the newest appointees to switch their votes began. Countless op-eds, tweets, and media spots assailed the Court's conservatives. Protestors gathered outside the homes of Justices Brett Kavanaugh and Amy Coney Barrett, calling on them to change course. One man even planned to kill Kavanaugh to prevent him from casting his vote. Despite all these signals that overruling Roe would have a jolting effect on our polity, the center held. The Court "under fire" still overruled Roe.
This redefined conception of legitimacy upsets long-standing views about the Court. But more importantly, Dobbs compels a recalibration by the Court's critics. In the past, progressives repeatedly warned that overruling a precedent like Roe would undermine the Court's legitimacy. If Dobbs is any indication, these barbs will be met with a collective yawn. Indeed, if Dobbs was unable to trigger a critical mass of support for Court "reform"—a euphemism for imposing term limits or expanding the number of seats—it is doubtful that anything would.
Justice Alito's opinion makes clear that public attacks will have no effect. Future precedents will turn on this emboldened conservative Court looking inward, not outward. Now, a new generation of law students, lawyers, and judges must internalize the Dobbs conception of "legitimacy."
Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
The views expressed in this article are the writer's own.
