Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time….
It is no exaggeration to say that this is the greatest victory for human rights in the Supreme Court’s history. Roe had consigned an entire category of living human beings to the essentially plenary right of others to kill them. And kill them we did, on an almost unimaginable scale: approximately sixty-two million human lives have been lost to legal abortion since Roe was decided in 1973….
Chief Justice Roberts concurred in the judgment only, making six votes to uphold Mississippi’s ban on abortion after fifteen weeks. But the rest of his opinion is bizarre. Obsessed with a desire to rule as narrowly as possible, Roberts would have overruled Roe and Casey insofar as they invented a plenary right to abortion up the point of viability — that much is all to the good, and important. But, on the ground that it was not necessary to decide anything more, Roberts would have preserved Roe’s “right to choose” abortion so long as there was some “reasonable” opportunity to have exercised that choice at some (unspecified) earlier point in pregnancy—or at least left that question open for now. This is contrived. It is the fetish of restraint, without common sense.
Taken seriously, it would invent (or preserve) a judicial abortion right and draw a brand new, arbitrary, ad hoc, unspecified line — exactly what Roberts condemned Roe and Casey for doing—on the ground that “judicial restraint” requires it. It is as if an Olympic sprinter determined that he should always run races taking only two-inch strides, as a matter of his own practice. Little wonder that he was left behind in the dust and that no one followed him. I have long resisted the common criticism of Roberts as not being fully principled. He has done some great work. But not here. This opinion is out to lunch….
The above comes from a June 26 posting in the Public Discourse.