A decision in Wednesday’s case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, regarding a Mississippi law banning most abortions after 15 weeks of pregnancy is not expected until late June.
Professor Fallon said it was difficult to come up with an appropriate comparison to a decision that Roe pushed aside.
“I’m not sure there’s a good historical analogy to Dobbs and the Supreme Court legitimacy concerns that inspired it,” said Professor Fallon. “But if so, it should be an issue that is both politically and morally divisive and where the stakes are very high.”
“One possible comparison,” he said, “would be with Dred Scott v. Sandford, which asks whether Congress had constitutional power to outlaw slavery in the territories. The underlying dispute in that case eventually led to the civil War.”
Professor Murray said that neither Dred Scott’s infamous decision, with a majority opinion written by Chief Justice Roger B. Taney, nor the decisions scrapping President Franklin D. Roosevelt’s New Deal programs.
“This moment seems very different from Taney court, very different from New Deal court, very different from Warren court and Brown,” she said. “In those moments, it felt like the court was acting for itself and not in the service of another project where it was just a vessel or a pawn.”
Professor Garnett said the court should act for itself in the Mississippi case — by setting Roe aside.
“If the court outright upholds the Constitution and stays within its proper role despite the possibility of negative publicity, as in Brown v. Board of Education, its legitimacy is enhanced,” she said. “A negative response does not mean that the court has done anything illegal. It can mean the opposite.”