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Reversing Roe Would Risk Supreme Court Legitimacy: Noah Feldman

Oct. 24, 2021, 12:00 PM

If a conservative majority of the Supreme Court votes to overturn Roe v. Wade, it won’t only be a disaster for people who need abortions. It will be a watershed moment in the history of the court. A body that has gained public legitimacy in the post-World War II era by making Americans freer would suddenly be making them less so.

The court’s push to expand a range of freedoms, from religious liberty and free speech to reproductive and sexual rights, has been the one consistent theme for the entire lifetimes of all the sitting justices. Reversing Roe would end that multigenerational, pan-ideological momentum — and leave the court without a rudder to steer its legitimacy into the future.

To understand how crucial the expansion of liberty has been for the court, consider that the justices have never reversed Supreme Court precedent to take away a freedom long enjoyed by Americans, with the possible exception of one time, in 1937. Doing so now would violate one of the fundamental-yet-unwritten rules of Supreme Court jurisprudence that liberal and conservative majorities alike have respected for many years.

As I’ve been developing this thesis, I’ve noticed that it seems to upset not only conservatives, whom I would expect to minimize the astonishing nature of such an outcome, but also some liberals, who somehow want to insist that the court has done some things in the past just as bad as overturning Roe.

So let me be extremely clear: The court has done very bad things in its history, but none of those decisions took away a well-established individual constitutional right that the court had declared decades before. I’m talking about jurisprudence here, not ranking the decisions on moral badness grounds.

The one arguable exception to my thesis wasn’t a bad decision at all, and is in fact lauded today by liberals and conservatives alike precisely because it didn’t actively constrain ordinary people’s freedom. (I’ll discuss that case shortly.)

What about the Supreme Court’s worst decisions of all time, the ones that cluster around race? Most students of constitutional history would agree that the extreme lowlights include Dred Scott v. Sandford, in which the court held that persons of African descent could not be counted as citizens of the U.S. for purposes of bringing suit in federal court; and Plessy v. Ferguson, in which seven of the nine justices held that separate but equal segregation did not violate the equal protection of the laws.

These were horrific decisions by any measure. The former was overturned by the Fourteenth Amendment and the latter by Brown v. Board of Education. Neither, however, took away a constitutional right that, like the right to abortion, had been previously established by the court.

Symbolically and legally, the Dred Scott decision in 1857 sought to exclude Black Americans permanently from “we the people.” That wrong was incalculable, and there is no need to compare its wrongness to the wrong that would flow from overturning Roe.

Yet it is also true that before the Dred Scott decision, there was no Supreme Court precedent on whether Americans of African descent could be considered citizens. Some states recognized Blacks as citizens of their states, as Justice Benjamin Curtis pointed out in his dissent.

Other states did not. The Dred Scott decision left Black people practically worse off than they had been before, because they could not go to federal court to challenge their enslaved status — or to bring any other type of federal lawsuit against citizens of other states. But few (if any) Black people had successfully gained their freedom in federal court, as opposed to state court, before.

The Dred Scott decision thus did not reverse an existing right that the court had established under the Constitution. Indeed, suing citizens of a different state in federal court is not, in classic constitutional terms, a fundamental liberty at all. It’s a privilege conferred on citizens that isn’t necessarily available to non-citizens or for that matter to citizens of the same state.

As for Plessy v. Ferguson, the 1896 segregation decision, it was arguably even more evil than Dred Scott, because it denied African Americans the equal protection of the laws expressly promised by the Fourteenth Amendment. At the same time, the court had not previously interpreted the Fourteenth Amendment to guarantee that equality.

Forms of segregation had existed in the North and the South in the years between the ratification of the amendment and the Plessy decision. The court was horribly, horribly wrong about the true meaning of the Constitution. It did not, however, overturn well-established precedent in the realm of individual liberty.

More recently, the court’s decision in Shelby County v. Holder in 2013 effectively gutted the section of the Voting Rights Act of 1965 that required states with a history of voting discrimination to pre-clear changes in voting law and districting with the Department of Justice and the courts. (For my outrage the day it was decided, see here). That decision made it easier for states to discriminate on the basis of race in setting voting rules.

What’s more, the court had previously upheld the Voting Rights Act. Yet the decision did not directly take away individual liberty previously conferred and enjoyed. It did not, for example, overturn the principle of one person, one vote. It may have allowed states to make some people marginally less equal; it did not allow them to make individuals less free.

Another lowlight in the court’s history worth considering is the 1944 Korematsu case, which effectively blessed President Franklin Roosevelt’s policy of interning Japanese Americans during World War II. The shameful decision endorsed a racially based policy and violated equal protection, even though the very same day the court also held that interned persons must be released if they satisfied a loyalty test.

But the court had not previously held that citizens of enemy countries could not be interned in wartime, or even that U.S. citizens whose families came from enemy countries could not be interned. The decision was a “disaster,” as constitutional experts immediately declared. It did not roll back a well-established liberty declared by the Supreme Court under the Constitution.

The one circumstance that arguably comes closest to marking the reversal of an individual right is the court’s repudiation of the now-discredited doctrine of the liberty of contract. Under that theory, the government could not limit work hours or impose certain conditions on employment – like a minimum wage.

The Supreme Court interpreted the due process clause of the Fourteenth Amendment to guarantee such a “liberty” for more than 30 years, overturning Progressive state labor laws in a jurisprudential era named after a 1905 case, Lochner v. New York. Both Lochner and Roe were decisions based on implicit autonomy rights the justices found in the Constitution but not expressly stated in the document’s words.

The core difference between the reversal of Lochner and a potential reversal of Roe is that, during the Lochner era, Americans presumably did not see themselves as exercising a fundamental constitutional right when they worked 60 hours or more a week in low-paying jobs with no minimum wage. Presumably they just felt as if their lives were hard.

Perhaps it could be argued that employers felt they were exercising a basic right to contract that was snuffed out when Lochner was overturned in 1937, shortly after Roosevelt tried to pack the court. If so, the loss of abortion rights after a reversal of Roe could, by a stretch of imagination that is more of a contortion, be compared to the reversal of Lochner and the subsequent legalization of maximum hour and minimum wage provisions.

The comparison, however, misses the main point of why a reversal of Roe is likely to be so shocking to the constitutional system, namely that Americans are accustomed to experiencing more freedom over time, not less.

Ordinarily, when the Supreme Court reverses itself in a liberty-related case, it creates or extends new rights that didn’t exist before. That’s what happened in 2003 in Lawrence v. Texas, when the court reversed Bowers v. Hardwick and established a right to have sex with a partner of one’s choice regardless of sex. It’s what happened in 2014 in Obergefell v. Hodges, when the court established a constitutional right to same-sex marriage. The basic idea behind this model of gradual rights-extension is that we are getting freer all the time, not more restricted.

Criminal procedure rights have (mostly) been getting broader over time, to the point where we can hardly contemplate losing the Miranda rights that are read to arrestees in real life as well as on television. (Yes, the Supreme Court in the early 1970s did reinstate the death penalty after temporarily halting it several years previously. But avoiding capital punishment after being convicted of murder isn’t a widespread right enjoyed by most people.)

A reversal of Roe would remove a right to bodily autonomy that the Supreme Court has called fundamental since 1973. Pro-life advocates will argue that abortion rights constrain the freedom of the unborn. They will maintain that, unlike other basic liberties, the right to choose can only be exercised at the expense of the fetus. They might even argue that overturning Roe expands liberty by protecting unborn people.

Some natural-law conservatives think the Constitution should be read to outlaw abortion on the theory that fetuses are persons entitled to the protection meaning of the Fourteenth Amendment. If the court were ever to adopt that reasoning, it could conceivably claim to be expanding liberty, nor contracting it.

But that’s not what the court’s majority will do if it overturns Roe. The court would simply declare that the right to abortion can’t be found in the Constitution. From that it would follow that states could outlaw abortion — not that they were obligated to do so. In other words, the court’s holding would allow states to take away the right to choose as it has existed for almost half a century.

The legitimacy of the modern court is closely tied to the court’s expansion of freedom — and of the closely entwined right to equality, which Americans often conceive as a right to be equally free of invidious discrimination. Brown v. Board of Education made the court into a lodestar of equal rights, at least once the civil rights movement mobilized to push the nation to turn the decision into a legal reality rather than a mere aspiration.

The religious liberty decisions, first made by liberals in the 1940s and continuing today in the hands of the conservative justices, put the court in the role of protector of conscience. Its free speech decisions, once liberal, now often conservative, have opened up vast realms of individual creativity — so much so that some progressives now think that free speech has gone too far. The court’s gay-rights jurisprudence cemented its place as the (gradual) expander of freedom for all Americans. Many young conservatives now accept that expansion as valid.

A court that gets off the path of liberty expansion by reversing Roe will lose its most precious means of establishing legitimacy. It will lose a sense of mission and direction that has been able to sustain itself regardless of whether liberal or conservative majorities were doing the pushing.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net

© 2021 Bloomberg L.P. All rights reserved. Used with permission.