‘Dobbs’ and the Conservative Legal Movement
COMMENTARY: If ‘Dobbs’ is decided following the ‘neutral principles’ of constitutional interpretation, it would not mean the end of abortion, or even the beginning of the end of it. ‘Dobbs’ would instead be the start of a whole new phase of the political struggle over abortion. Yet the Constitution requires more.
Whenever former Attorney General Edwin Meese says something about the conservative legal movement in the United States, it is time to sit up and listen.
One reason is that Meese, who served as President Ronald Reagan’s attorney general from 1985 to 1988, founded that movement four decades ago, along with Antonin Scalia, Robert Bork and William Rehnquist. Meese has been a stalwart of the project ever since.
Another reason is that the “conservative legal movement,” borne now most conspicuously by the Federalist Society, is the dominant force in American constitutional law. To understand it is largely to understand what our law is and where it is going. No one is better suited to guide our understanding than Ed Meese.
The third reason to listen is even more important. Although the conservative legal movement has done great good over the years, it now faces an existential crisis, and Meese knows it — thus the title of his essay in The Washington Post last week: “Did the conservative legal movement succeed? That all depends on whether the Supreme Court overrules Roe v. Wade.”
Meese wrote that the Court’s forthcoming decision in Dobbs v. Jackson Women’s Health will “determine” whether the “conservative legal project of the past 40 years, to restore neutral principles to constitutional interpretation, has been a success.”
Roe “has stood for years,” he said, “as the prime example of disrespect to our Constitution’s allocation of power and the proper judicial role.” What Meese means is that, on Jan. 22, 1973, the Supreme Court took to itself the power to decree abortion on demand. That infamous ruling, Meese concluded, “misconceived the Constitution, ignored the lessons of history and encouraged unaccountable” judicial governance. It was what Justice Byron White said it was in his Roe dissent: an “exercise of raw judicial power.”
Meese worries that one (or more) of the six conservatives now on the Court will be sidetracked by the clamor of “special interests” for their “preferred positions,” gussied up as “noble end[s].” He wrote those words before the Dobbs oral argument on Dec. 1. But he anticipated uncannily the shrill argument of the abortion business’ lawyer last week, that women’s bodily autonomy and not the lives of innocent persons, is the issue. This lawyer insisted, too, that women need abortion to be men’s equals.
Meese’s essay is a timely legal homily. He is calling the Court’s conservatives to hold fast the faith of the fathers, to stand tall in the face of superheated rhetoric and naked political demands.
The failure that Meese has in mind is that the Court will render a decision in Dobbs that is simply not conservative. That would be a ruling that sacrifices “neutral principles” of constitutional interpretation to political expediency or some cock-eyed idea of what a prudent abortion policy should be. Meese is exactly right that anything less than a complete reversal and Roe (and the 1992 affirmance of it, Planned Parenthood v. Casey) will be an abject failure of the conservative legal movement.
But Meese alluded to another prospective failure. He wrote that the “voters who trusted in the public statements of judges to interpret the law as written would have reason to doubt whether their trust was well-placed.” This prospect lacks the syllogistic tidiness of the first downside risk, which is simply: “If conservativism is defined by neutral principles, then a justice who abandons neutral principles is not a conservative.” This second risk is more practically political than the first. But it would be just as toxic to the conservative legal movement.
Meese pointed toward (but did not explore) the fact that conservative judges have been installed by Republican presidents running against Roe. Even when the terms of debate were proxies, such as “originalism” vs. “judicial activism,” everyone knew it was mainly about abortion. Just review the video of the Senate committee’s grilling of any Supreme Court nominee over the last 20 years.
Then ask yourself: How many of these testy exchanges are really about reversing Roe, even if neither that case name nor the word “abortion” is heard? And let’s face it: Millions of social conservatives, including millions of anti-abortion Catholics, voted for Donald Trump precisely because he said he would appoint “conservative judges” — and he named 20 of them just to show that he meant business. We knew what he meant because he knew what we wanted: the end of Roe.
On this promise, Trump delivered. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all on Trump’s list.
Or did he?
Meese’s point is that we will not know until we know what these justices do in Dobbs. He is right. My point (about the second big risk) is that the dollars and votes, which made the whole conservative legal movement into not just an interesting and largely sound body of thought, but also (as Meese wrote last week) the “dominant” legal project over the last 40 years, did not come from constitutional theorists. They came from people who do not care about “neutral principles” nearly as much as they care about unborn children.
These social conservatives allied themselves to a political party (Republican) and to a judicial philosophy (“conservative”) that might otherwise have perplexed, or vexed, them — for the sake of saving unborn children. Their investment in the movement and to the party has been instrumental and strategic.
These voters struck a partnership with the conservative legal movement. They know that now is the time and that Dobbs is the case to finally bury Roe. It is time to collect a dividend on their investment. More “judicial half-measures” (Meese’s phrase) won’t do.
If the Court does not deliver, these social conservatives will call in their shares. Without their support, the intellectual coherence of the conservative legal movement will survive. It will still attract devotees in the law schools. But it will no longer be the force it has been for 40 years in the politics of judicial selection. Not nearly.
There is one more potential risk to the conservative legal movement in Dobbs. This one is not an effect of failing to overrule Roe, but of doing so. It is an inherent limitation of the conservative legal movement upon the “success” it could possibly deliver in Dobbs. This limitation concerns the role of morality in constitutional interpretation.
In Dobbs specifically, it has to do with whether the conservative movement’s commitment to “neutral” construal of the Constitution amounts to saying that it is necessarily neutral about abortion — or whether it guarantees unborn persons the same protection of the law that it vouchsafes to the rest of us.
The escutcheon of the conservative legal movement is indeed what Meese called “neutral principles of constitutional interpretation.” He used the phrase several times in his brief Washington Post piece. But what is this “neutrality” when it comes to abortion and Dobbs?
“Success,” in this instance according to Meese, would “return the issue of abortion where it belongs, to the people”: “Reversing Roe and Casey will not ban abortion. States and the people will be free … to decide such matters of personal morality.” “Personal morality” is involved, to be sure. But abortion is first and foremost a matter of basic social justice.
It turns out that “neutral principles of constitutional interpretation” equals — in the legal conservatives’ understanding of it — neutrality about abortion. Justice Brett Kavanaugh articulated it most lucidly during oral argument in the form of a question to Mississippi’s lawyer: “[A]s I understand it, you’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process? ... [I]f you were to prevail, the states, a majority of states or states still could, and presumably would, continue to freely allow abortion, many states; some states would be able to do that even if you prevail under your view, is that correct?”
Conservative “success” in Dobbs would therefore not mean the end of abortion, or even the beginning of the end of it. Dobbs would instead be the starting gun of a whole new phase of the political struggle over abortion.
There can be little doubt that Dobbs would lead quickly to fewer abortions in America. As many as 15 states would all but ban that procedure altogether. Just as many (including such populous states as California, New York and Illinois) would permit abortion on demand — and pay for it with your tax dollars. The remaining states would be somewhere in between.
On this setup, hundreds of thousands of abortions — and maybe a million, or more — would occur each year for the foreseeable future, especially as the prevalence of pharmaceutical, at-home abortions makes it difficult to enforce even the abortion-restrictive laws in pro-life states.
If this sobering outcome represented the true meaning of the Constitution, then the only way to enshrine a constitutional right to life for the unborn would be to amend it. But the conservative “neutral” interpretation is unsound.
The Constitution is neither “silent” nor “neutral” about abortion. The Constitution guarantees to every human person the equal protection of the laws against being killed. Every human person begins at fertilization. That is not only true as a matter of biological fact and philosophical investigation. It is also the understanding of when people begin among those Americans who wrote that equality guarantee into our fundamental charter.
Several friend-of-the-court briefs filed in Dobbs make precisely this point, most compellingly. It won’t carry the Court in Dobbs, although it should. And it won’t, due to the deepest failure of the conservative legal movement, which is its aversion to relying upon moral truth even where the Constitution’s faithful interpretation clearly requires it.