Critical Moment for Roe, and the Supreme Court’s Legitimacy

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A decision in the case argued on Wednesday, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerning a Mississippi law that bans most abortions after 15 weeks of pregnancy, is not expected until late June.

Professor Fallon said it was hard to think of an apt comparison to a decision overruling Roe.

“I am not sure there is a good historical analogy to Dobbs and the worries about Supreme Court legitimacy that it has inspired,” Professor Fallon said. “But if there is, it would need to involve an issue that was simultaneously politically and morally divisive and that involved very high stakes.”

“A possible comparison,” he said, “would be to Dred Scott v. Sandford, presenting the question whether Congress had the power under the Constitution to ban slavery in the territories. The underlying dispute in that case ultimately led to the Civil War.”

Professor Murray said that neither the notorious Dred Scott decision, with a majority opinion written by Chief Justice Roger B. Taney, nor decisions striking down President Franklin D. Roosevelt’s New Deal programs were quite apt.

“This moment strikes me as really different from the Taney court, really different from the New Deal court, really different from the Warren court and Brown,” she said. “In those moments, it felt like the court was acting for itself and not in the service of some other project in which it was only a vessel or a pawn.”

Professor Garnett said the court should act for itself in the Mississippi case — by overruling Roe.

“When the court straightforwardly upholds the Constitution and stays within its proper role, despite the possibility of negative publicity, as it did in Brown v. Board of Education, its legitimacy is reinforced,” she said. “A negative reaction does not mean that the court has done something illegitimate. It may mean the opposite.”

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