At the Supreme Court, oral arguments serve a specific and somewhat unusual role. The justices aren’t really talking to the attorneys before them; rather, they’re talking to each other through the lawyer at the lectern. It’s often the first time that the justices have engaged with each other about the case at hand. In the blockbuster abortion dispute Dobbs v. Jackson Women’s Health Organization—which the Supreme Court heard on Wednesday—this dynamic is especially obvious. The three liberal justices had one goal: persuade their conservative colleagues to uphold Roe v. Wade by hammering home the importance of standing by precedent. Ideally, the senior-most liberal justice would take the lead, guiding his bloc toward a line of questions that, at a minimum, induced doubt, discomfort, and hesitance among his conservative colleagues.
In this task, Justice Stephen Breyer failed spectacularly. He zeroed in on the worst possible argument for preserving the constitutional right to abortion in light of the conservatives’ approach to precedent. He gave these justices an opportunity to frame overturning Roe as a victory for the Supreme Court’s independence (when it is actually a direct result of political influence). And he marooned himself in “philosophical” quandaries that drifted further and further away from any semblance of a point. This performance probably won’t, by itself, doom Roe; its fate was likely sealed already. But it does confirm that, by remaining on the bench, Breyer may only undermine the progressive jurisprudence he holds dear.
To understand why the justice’s questions were so ill-advised, it’s important to remember that we’ve been here before, in 1992’s Planned Parenthood v. Casey. Then, as now, a conservative court was on the brink of abolishing abortion rights. In a surprise move, three Republican-appointed justices chose to uphold Roe’s “essence”: a constitutional prohibition on abortion bans before fetal viability (at around 24 weeks). This troika professed misgivings about Roe as an original matter, suggesting that it may have been wrongly decided. But they chose to affirm it on the grounds of stare decisis, a doctrine counseling respect for precedent.
The Casey troika provided several reasons for this turnabout, including a generation’s reliance on the promise of abortion access. But a more contentious justification involved an overt consideration of public opinion. Noting “political pressure” to reverse Roe, the court declared: “To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.” In other words, if the court overturned Roe in the face of so much pressure, the public would perceive it as weak, waffling, and wedded to popular opinion—in a word, illegitimate.
Conservatives despised this conception of stare decisis. In his dissent from the bench, Chief Justice William Rehnquist asserted that “once the court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.” Justice Antonin Scalia dismissed the rationale as “almost czarist arrogance,” providing a mocking summary: “We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change—to show how little” anti-abortion activists “intimidate us.”
Scholarly criticism of Casey lambastes the court’s reasoning as detached from any constitutional principle, transforming Roe into a sham “superprecedent” on the basis of purely political considerations. One scholar who made this point was then-professor Amy Coney Barrett: In a 2013 law review article, she scorned Casey’s attempt to cement abortion rights by invoking the court’s legitimacy. Jurists and academics like Barrett see this reasoning as anathema to judicial independence, a craven surrender to special interests that defies a judge’s oath to the Constitution alone.
It was therefore surprising—to say the least—when Breyer not only alluded to this passage of Casey on Wednesday but quoted from it extensively in a long, aimless question that took up more than two full pages of the transcript. He read aloud several of the most vexed and disputed sentences of modern constitutional law as though they were widely embraced as the gospel truth.
Whom, exactly, does this help? It certainly won’t convince the other conservative justices, who belong to a legal movement built, in large part, on a rejection of this reasoning. To the contrary, these justices latched on to Breyer’s question to attack Casey as an outlier. Predictably, Barrett accepted the offer that Breyer extended, pointing out that Casey put forth “a different conception of stare decisis” that “very explicitly took into account public reaction.” This gave Mississippi Solicitor General Scott Stewart an opening to defend the more conventional and conservative notion of stare decisis, telling Barrett: “I think the court could very, very powerfully say, look, our legitimacy really derives from our willingness to stand strong and stand firm in the face of whatever is going on and stand for constitutional principle.”
Later, Chief Justice John Roberts seized on Breyer’s question to deliver a summation of Casey’s logical flaws. “It is certainly true that we cannot base our decisions on whether they’re popular or not with the people,” the chief justice said. He continued:
Casey seemed to say we shouldn’t base our decisions not only on that but whether they’re going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the court should be in not departing from prior precedent, sort of a super stare decisis, but it’s super stare decisis for what are regarded by many as the most erroneous decisions.
Breyer responded to Roberts’ question with another two-page cogitation on the “philosophical” aspects of this “paradox.”
“What’s the paradox?” Breyer asked. “Now maybe you think I’ve just made an argument that there isn’t one, but, really, in my head, I’m thinking I’m not sure. There may be one. And I don’t know if you’ve ever thought about this.”
Roberts clerked for Rehnquist. Barrett clerked for Scalia. As Republican pundit Josh Blackman pointed out on Thursday, these “two current members of the court channeled the logic of the justices they clerked for.” Because Breyer, of all people, lobbed them a softball.
The reality is that Casey’s rationale is irrelevant for another, more fundamental reason: Today’s conservative justices do not share their predecessors’ fear of appearing illegitimate. They have secured a 6–3 majority that may endure for decades. Democrats are nowhere close to expanding the Supreme Court; only a minority of progressives have endorsed the idea. Everyone can see the court’s legitimacy slipping, but even as its approval ratings collapse, the conservatives are not fazed. They are happy to overturn precedent “under fire” because they lack the concern for institutional prestige that compelled their predecessors to maintain stability. Breyer should recognize this, but he does not. And so he warned his colleagues of the dire consequences that will flow from overturning Roe, oblivious to the fact that they have decided the risk is too minimal to heed.
Perhaps there was nothing Breyer could have said on Wednesday that would have moved any of his conservative colleagues. But we will never know, because what he did say highlighted the most indefensible and illogical aspect of pro-choice precedent. Breyer’s discursive performance may have actually hurt the liberals’ chances of a compromise; at best, it did nothing except burn up valuable time. Now more than ever, the liberal bloc needs a strong leader who can ask clear, concise questions that could move the needle leftward. If nothing else, Breyer’s performance during the most important battle over reproductive freedom in nearly 30 years proved that he is not the man for the job.
