Most of the focus on Dobbs v. Jackson Women’s Health Organization has been on the policy ramifications of overturning Roe v. Wade, which are substantial to say the least. But Supreme Court justices are not supposed to focus on policy results (although, unfortunately, they often do). They are supposed to apply the Constitution and laws—as written by others—without funneling their own personal policy preferences into that document or into those legislative acts.
When judges fulfill their proper role—applying the Constitution and laws as written, according to their plain and originally understood meanings—they play a crucial role in ensuring the perpetuation of republican government—of government of, by, and for the people. When they instead act like unelected, unchecked legislators—while disingenuously claiming that the Constitution makes them do it—they effectively replace republicanism with government by a robed minority of Ivy League elites.
In terms of hijacking a major policy issue and resolving it from the bench in a way that the Constitution did not remotely require or justify, the two worst Supreme Court rulings in United States history have been Dred Scott v. Sandford (1857) and Roe v. Wade (1973). Obergefell v. Hodges [2015], in which the Court redefined marriage and imposed its new definition nationwide, may deserve the bronze medal for judicial adventurism.
Dred Scott was never really overturned by the judiciary, as it was effectively overturned by the post-Civil War constitutional amendments. Dobbs, therefore, marks the first time that one of these all-time-worst rulings has ever been overturned by the Court. For this distinction, Dobbs merits being regarded as the finest Supreme Court ruling since the early days of the republic.
Legally, Dred Scott and Roe were remarkably similar cases (as is Obergefell). In Dred Scott, the Court proclaimed that Congress had no authority to ban slavery in the territories. In Roe, it proclaimed that state legislatures had no authority to ban pre-viability abortions in the states. Congress had been banning slavery in the territories from the Washington Administration onward, yet the Court imposed its will, sided with slavery, and invited the Civil War. Every state legislature had banned abortion at one time or another—as the majority in Dobbs notes—yet the Court imposed its will, sided with abortion, and overruled the people’s representatives.
Both rulings (or at least Roe as reaffirmed 30 years ago in Planned Parenthood v. Casey ) rested on language designed to ensure that courts henceforth would follow appropriate legal processes. The Fifth Amendment precludes double-jeopardy, bars requiring self-incrimination, and guarantees the federal government shall not deprive anyone “of life, liberty, or property, without due process of law.” Identical language in the 14th Amendment applies the due process provision to the states.
In both Dred Scott and Roe, the Court effectively changed “without due process of law” to “unless we say so”—thereby transforming a procedural guarantee into a substantive guarantee and letting the Court determine the substance. This brazenness gave birth to the rather oxymoronic term “substantive due process” and empowered the Court to proclaim what substance, rather than what process, was due.
In the instance of Dred Scott, many people regarded the liberty of slaves as trumping the property claims of those who wished to keep them enslaved. With Roe, many people regarded the lives of the unborn as trumping the liberty claims of those who wished to end their lives. In both cases, many others thought the opposite. In neither case did the Constitution decide the matter or invite the Court to claim that the Constitution did so.
Justice Benjamin Curtis, expressing views shared by Abraham Lincoln, wrote in his exemplary Dred Scott dissent that the (pre-1865) Constitution granted Congress the power “to allow or prohibit slavery in the territory belonging to the United States.” In other words, the matter was left up to Congress to decide.
Justice Samuel Alito, rejecting misguided claims that a historically bad ruling that had constantly engendered controversy was somehow too settled or sacred to revisit, wrote in his outstanding Dobbs opinion: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” In other words, the matter was left up to state legislatures to decide.
Having just celebrated Independence Day, Americans should be thankful for the historic Dobbs ruling. It has done more to preserve the separation of powers, the rule of law, federalism, republican government, and the Constitution itself, than any ruling since John Marshall and Joseph Story graced the Court.