Monday, December 5, 2022
Richard M. Re, Should Gradualism Have Prevailed in Dobbs?, SSRN:
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general, the Supreme Court should not impose massive disruption without first providing notice of its contemplated course of action. Only the Chief Justice followed that principle, and as a result his decision is the most compelling of the bunch. By contrast, the majority opinion sometimes claimed to be strictly formalist, particularly when doing so helped it dismiss prudential objections. Yet the majority’s most plausible rationale was, inevitably, steeped in judicial statecraft. In essence, the majority claimed that only grand, decisive action could meet the challenge at hand. But by acting in haste, the Court compromised its own deliberative process and prevented the public from adequately preparing for an avulsive shift in the law. The joint dissent’s treatment of precedent was, if anything, even less persuasive. The dissent’s own uses of precedent demonstrate how readily case law is thrown overboard – not just in the past few years, but throughout many decades. And new personnel can offer a uniquely compelling basis for revisiting case law. So, if the majority had reason to moderate, the dissenters did, too – by joining a gradualist opinion like the Chief’s.