Who’s Afraid of Gradualism in Dobbs?

The Supreme Court may be poised to overrule Roe v. Wade and eliminate all constitutional abortion rights. That sweeping result is teed up in Dobbs v. Jackson Women’s Health Organization, a case to be argued on Wednesday. Yet whether to overrule nearly 50 years of precedent is not a question that the Court is prepared to answer. Even though both parties and many observers are eager for a final reckoning with abortion rights, the public and the Court itself would be far better served by a more gradual, judicious approach.

The initial problem is that, in Dobbs, the Court has not followed its normal deliberative process. Instead, Mississippi asked the justices to review an abortion prohibition that posed no disagreement among lower courts or any other conventional basis for review. After sitting on the case for nearly a year, the justices finally agreed to consider a single issue: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” That question focuses on viability, is concerned with whether “all” relevant restrictions are categorically unlawful, and identifies no specific precedent to be overruled. Onlookers were accordingly left to debate just what the Court had in mind in granting the case. 

Mississippi then seized the initiative by submitting a merits brief that primarily argued for overruling all precedents recognizing abortion rights—a possibility that the state’s certiorari petition had raised, if at all, only in a half-hearted footnote. So what had seemed like an important but limited challenge to abortion rights suddenly became a broadside attack on decades of case law. In response, the abortion providers objected to Mississippi’s bait-and-switch and briefly asked for dismissal of the case; but they also agreed that “There are no half-measures here.” So the parties ultimately offer the same unyielding choice between two starkly opposing options.

Yet advocates have strategic reasons for framing certain options for the Court while excluding others. Lawyers might avoid offering a half measure for fear of undermining their main argument, particularly when they are left to guess about the justices’ views. And political activists might prefer that the Court issue a precipitous ruling so that they can better mobilize against the judiciary. A partial defeat in court might be far less useful for politicos precisely because it would appear more legitimate or non-partisan. For these reasons, litigants do not necessarily speak for all affected people, and the fact that both sides pose a stark choice may only prove that the adversarial system has given way to political polarization. 

Normal caution might seem unnecessary in Dobbs because the issue of abortion rights is already so familiar to the justices. What law school graduate, after all, has failed to think about Roe? But partial knowledge is often the most confident, and deliberation has a way of revealing things we didn’t expect. Gradualism can also allow the Court to learn from experience rather than armchair speculation. The Dobbs briefs are full of predictions about what would happen—doctrinally, practically, and politically—if abortion case law changed. By moving incrementally, the Court can begin to replace those predictions with facts and ultimately make a more informed decision at a later date. 

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, a request for additional briefing and argument, or dismissal of the case.

In an indirect way, the Court has already produced something like incrementalism on abortion rights. By allowing Texas’s SB8 to operate for several months, the justices have essentially allowed a major state to create a post-Roe world. But while that experience has fostered public debate and been informative in some ways, litigation over SB8 has so far focused on complex procedural issues, not the substantive and precedential questions pertinent to Dobbs. Given those differences, and the fact that the briefing in Dobbs was well underway when SB8 came into effect, the events in Texas are no substitute for caution in Dobbs itself. 

Of course, judicial gradualism can only achieve so much. Because the nation is divided by starkly conflicting legal and policy views on abortion, Dobbs will be met with second-guessing, if not condemnation, no matter how it comes out. Criticism, as they say, comes with the territory. What the Court can control, however, is whether it treats the issue of abortion rights with the care it deserves. Roe itself was famously faulted, including by Justice Ginsburg, for moving too fast. It would be ironic if Roe’s latest critics have failed to learn that lesson.

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Filed under Judicial Decision-making, Stare Decisis, Supreme Court, Supreme Decision-making

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