Published July 15, 2022
As conservatives across the country celebrated the U.S. Supreme Court’s historic June 24 decision to overturn Roe v. Wade, a curious note could be discerned in the matching howls of indignation from the left. For once, progressives were upset not that conservatives were changing too little but that they were changing too much. Liberal commentators lamented the judicial activism of the conservative justices, observing how wrong Alexander Hamilton had been to imagine the judiciary as the “weakest branch” of the Constitution’s new federal government. In a searing Washington Post op-ed, Dana Milbank excoriated the high court as an engine of revolution, causing “maximum chaos.” At the same time, Georgetown Law professor Brad Snyder exhorted liberals to preach the importance of “judicial restraint.”
Such a role reversal is startling, for until now, it had been conservatives apt to cry foul over judicial activism, conservatives eager to return the court to its limited constitutional role, and conservatives arguing for the maintenance of order and continuity. Progressives, in contrast, have happily run roughshod over established laws and legislative majorities in decisions that invented, for example, a constitutional right to same-sex marriage. In response to progressives’ sudden newfound concern for restraint, it might suffice to point out that the whole point of the Dobbs ruling was precisely to get the court out of the way and return the issue of abortion to the legislative process where it belongs. Still, the progressives have a point: If overturning five decades of constitutional law isn’t revolutionary, what is?
This concern, of course, was shared by Chief Justice John Roberts, who, though partly concurring in the judgment, pleaded against the majority opinion for the need to chart a middle way. Roberts, invoking the fundamental conservative commitment to judicial restraint, argued that the Mississippi law that provoked the case could have been upheld without explicitly overturning Roe v. Wade and the precedents it set. “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” he insisted in his closely reasoned concurrence. On this account, the court’s task is neither to make law nor to unmake law but to uphold the authority of law even while subtly adapting it to changing circumstances, stretching the delicate fabric of legal order without tearing it. If past judges have made an error, current judges should uphold the authority of the institution by correcting that error as quietly and gently as possible, tweaking the interpretation of past rulings rather than flatly overturning them.
While Christians eager to see the end of abortion might chafe at such restraint, there is no question that Chief Justice Roberts’ plea for moderation represents a historically conservative understanding of the role of the courts. Since its medieval foundations, it has been the genius of the English and American common law to serve as an instrument of conservative reform, adapting by incremental degrees rather than imposing the personal opinions of unelected judges on society in a radical change of direction. From the outside, it might look like the decision in Dobbs was not so much conservative as revolutionary. But appearances do not tell the whole story. The Dobbs decision represents a revolution of a conservative return to text, tradition, and restraint.
For this reason, Justice Samuel Alito’s brilliantly argued majority opinion is well-worth a careful read, for he expends great effort in making the case for overturning Roe as an authentically conservative move. Tackling head-on the conservative principle of stare decisis (existing legal precedents should be allowed to stand), he insists that this cannot be an exceptionless rule: “Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong. When that happens, stare decisis is not a straitjacket.” The precedent set by Roe v. Wade was such a great legal and political disaster that dramatic action is called for to reverse it. Indeed, the usual arguments for stare decisis, Justice Alito insists, point in this direction. Ordinarily, the assumption is that even bad existing law helps maintain the fabric of social order by helping people know “the rules of the game,” as it were. But the reasoning of Roe, and later decisions built upon it, was so unclear that it has fueled social and political chaos.
We might illustrate Justice Alito’s reasoning with an analogy. Ordinarily, a wise driver knows that sudden movements of the steering wheel are dangerous, and he should change direction gradually. However, if he discovers that he has veered off-course and is stuck in deep ruts of a dirt road leading off a cliff, the only safe—the only “conservative”—thing to do is to yank the steering wheel hard in the direction of the route he long ago left. That’s a course correction, not a revolution.
Brad Littlejohn, Ph.D., is a Fellow in EPPC’s Evangelicals in Civic Life Program, where his work focuses on helping public leaders understand the intellectual and historical foundations of our current breakdown of public trust, social cohesion, and sound governance. His research investigates shifting understandings of the nature of freedom and authority, and how a more full-orbed conception of freedom, rooted in the Christian tradition, can inform policy that respects both the dignity of the individual and the urgency of the common good. He also serves as President of the Davenant Institute.