William & Mary Bill of Rights Journal
Abstract
Chief Justice John Roberts attempted to chart a middle way in Dobbs v. Jackson Women’s Health Organization. But there are times when you must choose a side. This was one of them.
The Chief Justice has been a consistent proponent of judicial restraint since he joined the United States Supreme Court in 2005. For him, one of the key characteristics of restraint is deciding no more than necessary to resolve a case. In Dobbs, he insisted that the Court did not need to overrule Roe v. Wade and Planned Parenthood v. Casey in full to uphold Mississippi’s fifteen-week abortion ban, but merely could excise the Roe and Casey rule that viability is the critical dividing line in balancing a woman’s putative right to choose abortion against a State’s interests in curbing the procedure. According to the Chief Justice, the Court could have ruled in Mississippi’s favor and yet preserved the basic right that the Roe Court found in the Constitution, a right he claimed that—at least for now—“should . . . extend far enough to ensure a reasonable opportunity to choose, but need not extend any further.”
Chief Justice Roberts maintained that the Court could have disposed of viability “under a straightforward stare decisis analysis.” Curiously, though, he did not refer at all to his missive on stare decisis in Citizens United v. FEC. There, he wrote in concurrence that “[s]tare decisis is a doctrine of preservation, not transformation.” Ignoring this fundamental principle in pursuit of judicial restraint and moderation, the Chief Justice in Dobbs advocated for a decision that would have been neither restrained nor moderate.
Despite the Chief Justice’s protestations to the contrary, to decide in Mississippi’s favor, the Court would have had to have done more than just excise viability from Roe and Casey. Perhaps the Chief Justice did not recognize it, but even he was advocating for more, urging the Court to introduce a brand new “reasonable opportunity” rule into its abortion jurisprudence.
This Article critically examines Chief Justice Roberts’s concurrence in Dobbs, focusing in particular on the effect of merely removing the gestational-based features the Roe and Casey Courts used in articulating their holdings and constitutional tests. The Article also describes the havoc the Court would have wrought if the Chief Justice had convinced just one of the Justices in the majority to join his concurrence. And the Article concludes with a plea for judges to decide cases by applying principles of judicial restraint consistently and not artificially to manufacture a result.