Judges have employed principles of decision-making since time immemorial. One such principle is “judicial restraint.” This principle assumes what should be obvious: courts and judges retain their authority only so long as their decisions are perceived as mostly fair. Pres. Andy Jackson once remarked about a decision by the Supreme Court which he did not like, “the Supreme Court has made its decision, now let them enforce its decision.” Jackson refused to enforce a ruling by the Supreme Court that favored the Cherokees Indian tribe. A court can easily and quickly lose its credibility. The principle of judicial restraint provides that if a judge can avoid making a decision, s/he should. Or, as Justice Roberts explained,  “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” The principle calls for a certain level of judicial humility and for recognition of a court’s limits.

Judicial Restraint

The majority opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022), lacks judicial restraint. The majority opinion does not accept limits. Indeed, at the tail end of a exceedingly long opinion, stretching over 100 pages with two appendices, the majority opinion expresses disdain for public opinion. Numerous partial concurrences are interspersed throughout the majority opinion. The opinion was joined by concurrences from three different Justices. The majority opinion is complicated. The Dobbs court compares its opinion to the decision in Brown v. Board of Education, 347 U. S. 483 (1954).

No “Extraneous Influences”

But, the Brown decision, which also overruled long-standing precedent, was a 9-0 decision and only required 11 pages. The Brown court had some sense of the import of its decision. Unlike the Dobbs court, no member of the Brown court solicited integration lawsuits. But, both Justice Thomas and Justice Alito have dropped hints in their dissents and concurrences over the years that they were open to overturning Roe. Thomas and Alito were essentially issue shopping, just as some party litigants shop for the right judge. If two justices have been issue-shopping, the resulting decision will necessarily be seen as political. 

In the Dobbs decision, Justice Alito displays little interest in the ramifications of its decision. The court insists it must not allow “extraneous influences” such as public opinion to affect their work. Dobbs, slip op., at 67. The court insists that it derives its legitimacy not from public opinion, but from following the “best lights” regarding adherence to the Constitution. Dobbs, slip op., at 67. The court displays no understanding of the effect this opinion will have on the American public. Taking away a right of 50 years precedence is very different from adding a right not previously enjoyed. This Dobbs court will be perceived as much more political since . . . well, since the Roe v Wade, 410 U.S. 113 (1973), decision in 1973. But, this will be worse, because this time, the court is removing a right. And, this time, the court is issuing a decision which the author of that opinion has solicited for years.

Judicial Humility

Justice Roberts wrote in his concurrence that this decision could have been decided by simply affirming the Mississippi statute. The court did not need to overturn 50 years of precedent to decide this case. Wiser judges, Justice Roberts cautions, would have exercised restraint. As Justice Jackson observed in 1943, an attitude of judicial humility reflects acknowledgment of judicial limits. Justice Jackson himself pointed to Justice John Marshall who observed later in life that he never sought to enlarge judicial power beyond its proper boundaries. West Virginia Board of Education. v. Barnette, 319 U.S. 624, 668 (1943). Justices Jackson and Marshall recognized judicial restraint. Justice Alito does not.

See the decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022) here.