Although I studied law for the Bar once upon a time, I never made anything of it. After a first degree including philosophy, the claims of lawyers to be engaging in rigorous reasoning seemed at best flattering, at worst forced.
It does come as a shock, however, to read a legal judgment from America’s most senior lawyers that is not just sloppy, but destructive and slightly deranged. It is, of course, Dobbs v Jackson Womens’ Health, the revision of settled law on abortion. There are four obvious problems with it. The first lies in the dismissal of the relevance of the principle of privacy – quite rightly noted, in this judgment, to cover “the right to make and implement important personal decisions without governmental interference.” This concept is what the decision in Roe v Wade relied on. It was first laid out by Justices Warren and Brandeis in an article in the Harvard Law Review in 1890: they called it “inviolate personality”. Justice Thomas, in this judgment, dismisses such ideas as ‘ethereal’, for which read airy-fairy. In doing that, he is jettisoning more than a century of legal reasoning.
Second, there is the simple objection that this judgment throws stare decisis out of the window – not just precedent, but the principle that judgements should not have to be repeatedly revisted and laws should not have to be constantly reinterpreted. There are now nearly fifty years of intervening case law, all of which are being invalidated.
The third problem rests in the dismissal of the relevance of the 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …” Note the language: not liberty, not rights, but privileges and immunities. There are more than a hundred references to the 14th Amendment in the judgment, and every one of them refers either generally to ‘liberty’ (the main reference) or ‘rights’ (in order to deny the existence a ‘right to abortion’). The word ‘liberty’ occurs in the second part of the 14th Amendment – that no State shall “deprive any person of life, liberty, or property without due process of law.” That clause is considered more than once and its relevance is rejected – but it was not the point at issue. The effect of the ‘Privileges or Immunities’ clause, by contrast, is relegated to the footnotes in the judgment, and not directly discussed.
In a classic US legal article, Some fundamental conceptions (1913), Wesley Hohfeld explains what a privilege is, and cites legal cases to back that up. A privilege is a special form of legal liberty: when people have a privilege, he explains, they are legally “under no duty to do otherwise”. Ever since Roe v Wade, women seeking an abortion have been under no duty to do otherwise. Roe v Wade established a specific privilege that has been the law for nearly fifty years. The 14th Amendment explicitly extends protection to people’s privileges, for the express purpose of ensuring that the States cannot resile from them, and the Supreme Court has flatly refused to apply it.
The fourth problem stems from the bizarre reading of the 14th Amendment as a purely historical document relating to a single point in time. The judgment complains, more than once, that Roe v Wade did not review the law as it stood in 1868, the year when the 14th Amendment was passed. At this point, the reasoning tips from strained into sinister. In 1868, women could not vote – an 1875 judgment, Minor v Happerset, explained that being citizens did mean that women had voting rights. Votes for women are protected by a further constitutional amendment, the 19th, but votes for African Americans aren’t – those have been assumed to be protected by the 14th. If the interpretation of the 14th has to go back to its pristine state in 1868, then by the same argument, the Court could now throw out the 1964 Civil Rights Act or the 1965 Voting Rights Act – and we know there are politicians out there who would love that to happen.
The main issue on which one might say the justices have a point is that the judgment in Roe is very prescriptive about implementation: they could have opined that the Court had previously exceeded its authority, loosening the straps by delegating more authority to State governments to interpret the law. What the Court has done instead is, metaphorically speaking, to set fire to the building – they have begun a bonfire of the precedents, and it is not going to stop here. The decision, to borrow a phrase from the judgment, is ‘egregiously wrong’.
Additional note, 4th October 2022. After I wrote this, I read Common Good Constitutionalism by Adrian Vermeule. Writing before this judgment, he identifies two of the issues which I was complaining about here: the doctrine of ‘originalism’, which is delusional, and the degree to which the Court allows precedents to build before junking them. If he’s right, and I’ve no reason to think he isn’t, this sort of nonsense has become par for the course.