Overturning Roe: A Conservative Legal Triumph and Return to Common Sense

Today’s opinion in Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade is a momentous achievement of the conservative legal movement and an act of great courage, to say nothing of common sense and fidelity to the Constitution, by the five majority justices. 

We few, we happy few paleoconservative professors in the legal academy doubted that we would ever see this day, as Roe had been made by the left-leaning media and by progressive politicians into something they called a “super-duper precedent,” one that could never be overturned, since it had become such a fixed star in the jurisprudential firmament. 

 But overturned it was, and in the strongest imaginable language.  Labeled by the author of the majority opinion (for which he will long be remembered), Justice Samuel Alito, as essentially devoid of any real connection to the Constitution, and an example of “egregious” judicial abuse, Roe and its 1992 affirming decision, Planned Parenthood v. Casey were repudiated in a manner unlikely to be reversed. 

This was the strongest blow in two generations at ending “government by judiciary,” the manufacture of spurious Constitutional rights in accordance with progressive policy, but not found in the original understanding of the Constitution. 

I have earlier suggested in this forum that if Alito’s leaked draft became official (as it now has) this would be a notable return to common sense on the part of the Court, a recognition of the basic principle of separation of powers supposedly enshrined in our founding document, that courts are not legislatures, and that if new policy is to be forged, it should be done by the people’s elected representatives, in Congress, or even better, in the legislatures of the states. 

Dobbs is thus a culmination of roughly two generations’ effort on the part of conservative Justices such as William Rehnquist, Antonin Scalia, and Clarence Thomas, among others, to remind their fellows of the second great recently neglected Constitutional principle: Federalism. The federal government (and its judiciary) are supposed to be bodies with express and limited reach, and that, as the Tenth Amendment provides, the powers not granted to the federal government are to be retained by the states, and the people thereof.  

The enemies of the Constitution and the rule of law will lament Dobbs as a loss of rights for women, and an unjustified attack on abortion. It is nothing of the kind, and is, instead, a democratic, or perhaps more accurately, a republican affirmation of the most important legal right: the right of self-government. The Court has left every state government free to permit or to prevent the termination of fetal life as it sees fit.   

If taken to its logical implication, as Justice Thomas recognized in his concurrence in Dobbs, this decision ought to lead to a reexamination and likely repudiation of the other manufactured “rights” by the court, and to a similar repudiation of decisions that have wrongly permitted a centralized bureaucracy or an uncontrolled judiciary to impose their arbitrary choices on the American polity.  The genius of the Constitution, as Louis Brandeis saw it, and as organizations such as the Federalist Society came to understand, was to permit the 50 individual states to function as 50 “social laboratories,” given discretion to formulate laws and policies in the manner they determined to be best, to the end that multiple efforts and experiments would lead to optimal results. The mentality prevalent among progressives and much of the Democratic Party, that one size must be made to fit all, has probably suffered its greatest setback in memory. 

The blowback on this Supreme Court decision will be fierce. Not surprisingly, many Democrats, including the bloviator-in-chief now in the White House have sought to fan the flames of hatred against the Dobbs majority. Some Democrats must believe that making Dobbs an issue for the midterms will aid in preventing the electoral debacle many have predicted for the left. This sinful demagoguery is unlikely to prevail, and if the Supreme Court majority can maintain the courage and rectitude it has demonstrated today and in the last two weeks, we just might see a rebirth of the rule of law. 

(Image: Pregnant woman. Bartosz Koplin / via Flickr)

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