Minimalism and Formalism in Dobbs

The October 2021 Term is going to go down as an important “pivot” in the U.S. Supreme Court’s history. And that pivot will surely change how Court-watchers study the Court. For at least 30 years, the Court has been relatively evenly balanced between judicial conservatives, judicial progressives, and Justices not committed to either of those projects. After Donald Trump’s three appointments, the Court now has a 6-vote coalition of judicial conservatives. For Court-watchers, then, the new challenges are to predict when and to understand why that coalition will stay together or fracture.

Andy Smarick has written an extremely thoughtful essay on these themes for Law & Liberty. In Smarick’s portrait, Chief Justice John Roberts stands apart from the other five conservatives. Those five colleagues (Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Samuel Alito, and Clarence Thomas) are all originalists, but Roberts is a “minimalist.” Roberts made common cause with the originalists often in the October 2021 Term, Smarick argues, but he got sidelined in Dobbs v. Jackson Women’s Health Organization, the case that overruled the abortion rights decisions Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

Smarick is asking exactly the sorts of questions that need to be asked after the Court’s pivot, and I agree with his answers in broad outline. In this response, however, I want to offer a different framework for studying judicial conservatism and its elements. Court-watchers will get more explanatory power, I’ll argue, if they study what Smarick calls “minimalism” as three separate commitments. I’ll focus most closely on one commitment—which I’ll call judicial “formalism”—which doesn’t get treated in Smarick’s essay. And like Smarick, I’ll illustrate using the Court’s decision in Dobbs.

The Commitments That Define Judicial Conservatism

Smarick is clearly right that originalism is a key tenet of modern judicial conservatism. He is also clearly right that judicial conservativism is associated somehow with minimalism. When Justice Alito characterizes the Chief Justice’s separate concurrence in his opinion for the Court in Dobbs, he describes the concurrence as motivated by “judicial minimalism.” But if a judge is a minimalist, what bad outcome is he trying to minimize?

In other writings, I’ve identified three different possible answers. As Smarick recognizes, minimalism often correlates with a court’s “preserving as many precedents as possible,” and when it does the answer to my question is, “minimize the number of occasions in which a court must overrule settled precedents.” But there are two other answers. One goes: “minimize the number of times a court declares a law unconstitutional and then issues an injunction to supervise whatever policy dispute the law covers.” When judges try to avoid those scenarios, they pursue a commitment commonly associated with “judicial restraint.”

The last possible answer goes: “minimize the discretion that judges exercise when they apply law to particular cases.” That preference, for settled rules over discretion, is what I mean by “formalism.” Judicial progressives are comfortable with judicial discretion. Many of the tributes to Justice Stephen Breyer on his retirement this Term praised him for being a “pragmatist.” And think about the “wise Latina” soundbite that dominated Justice Sonia Sotomayor’s confirmation process. Judicial progressives want judges who possess the character traits that go with that phrase. For judicial conservatives, those traits are disqualifying. Conservatives want judges who (as Justice Antonin Scalia once put it) administer a rule of law understood as a “law of rules.” When insurgent conservatives defeated Harriet Miers’ nomination to the Supreme Court, they argued that Miers was likely to be a sloppy interpreter of the law.

These four commitments—originalism, fidelity to precedent, judicial restraint, and formalism—are the four features that mark a judge as a judicial conservative. But different judicial conservatives sort these commitments differently, and in hard cases, the commitments pull judges in different directions. The commitments help sort judges as the Meyers-Briggs test helps sort job applicants. They also shed helpful light on the arguments judicial conservatives have with one another when they disagree—as happened in Dobbs.

Dobbs’ Challenge for Judicial Conservatives

If a judge cared only about original meaning, Dobbs was an easy case to decide. Even the dissenters “agree[d]” that, “[i]n 1868, there was no nationwide right to end a pregnancy, and no one thought that the Fourteenth Amendment provided one.”

If a judge cared only about judicial restraint, Dobbs was also easy to decide. Politically, Dobbs stops federal courts from declaring unconstitutional and enjoining all state restrictions on abortion except the most extreme ones. Those effects are exactly what one would want if one believed that (as Justice Alito put it) the Court “cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”

But Dobbs was not an open-and-shut case for judicial conservatives. And that is because conservatives also value fidelity to precedent. Casey was 30 years old this Term, Roe was 49 years old, and the Court has declined to overrule Roe several times already. That background motivated the Chief Justice to pursue a minimalist strategy in Dobbs; in his concurrence, he likened the Court’s judgment to ripping out walls “all the way down to the studs.”

But why was the Chief Justice the only Court conservative to be troubled by ripping out 49 years’ worth of cases? Before Dobbs was argued, conventional wisdom expected that the Court would narrow Roe and Casey without overruling them outright. To narrow without overruling, the Chief Justice needed to persuade only one colleague to his right. Some of those Justices respect precedent greatly. Why didn’t the Chief Justice’s arguments get any traction with any of them?

Many of the Court’s conservatives place great value on deciding cases consistent with settled legal rules. To those Justices, the proposal the Chief made in Dobbs may have seemed not a gambit but improvisation.

Formalism and the Chief Justice’s Gambit

We may never know for sure. And for some of the conservatives on the Court, the answer could just be that Roe and Casey were really inconsistent with the Constitution’s original meaning. That said, I suspect that some of the conservatives on the Court were influenced by formalist concerns. As Dobbs unfolded, it turned out to be really difficult to chip away at Roe or Casey with an argument that would satisfy a lawyer’s lawyer. Many of the Court’s conservatives place great value on deciding cases consistent with settled legal rules. To those Justices, the proposal the Chief made in Dobbs may have seemed not a gambit but improvisation.

As Smarick explains what he calls the Chief Justice’s “gambit,” it went like this: Sacrifice Roe and Casey’s viability standard; assume without deciding that the Constitution protects some fair opportunity for women to get abortions; and then uphold the Mississippi statute on the ground that it gives pregnant Mississippi women the requisite fair opportunity.

That gambit was unsatisfying for two reasons. It asked Justices to read Roe and Casey differently from the way lawyers and judges have read them for three decades and more. In the opinion on review in Dobbs, Judge Patrick Higginbotham restated conventional wisdom perfectly: “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability.” To go along with the gambit, a Justice would have needed to read Roe and Casey as only about the abortion right, not about the protection of the right through viability.

Second, the gambit asked Justices to disregard the principles from a field called the “law of precedents.” This field is esoteric, but lawyers’ lawyers know it and respect it. As I explained in an article I published after the Dobbs oral argument, the law of precedents supplied the legal background most relevant to the Chief Justice’s gambit. When a court is considering whether to reaffirm or overrule an earlier precedent, it needs to identify the holdings of the case being challenged. A case’s “holdings” consist of whatever propositions of law are necessary to the judgment handed down in it; any propositions extraneous to the judgment are called obiter dicta, “offhand statements.”

For the Chief Justice’s gambit to work, Justices needed to read Roe and Casey in specific ways. The cases needed to hold that the Fourteenth Amendment constitutionalizes an abortion right, but not to hold that the right is protected from state interference through viability. Under the law of precedents, the first of those readings is right but the second is (as Alito recognized for the Court) “simply incorrect.” Roe and Casey both declared state statutes unconstitutional on their faces, i.e., unenforceable not only against the plaintiffs who challenged them but against anyone anywhere or ever again. And the statutes were facially unconstitutional because they jeopardized women’s right to get abortions before viability. Reviewing Roe, Casey, and later abortion rights cases as a lawyers’ lawyer would, Alito showed that the viability standard was a “critical component” in all of those cases. The gambit did not preserve half of Roe and Casey, Alito correctly concluded, and instead proposed a “new rule” different from those cases’ holdings.

Now, doctrines about precedents and their scopes are very formal doctrines. And in a case like Dobbs, one can understand why the Chief Justice might have wanted to downplay formalities and find some compromise exemplifying the statesmanship he is often described as pursuing. But one can also understand why other Justices wanted to stick with the forms. Although formal rules can get in the way of what is right, people develop forms to realize desirable results in complex social settings. Often, then, the surest way to do what is right is to follow the relevant forms.

The Dobbs majority relied on that understanding of forms and their role. In the Court’s opinion, Alito refused to consider “how our political system or society will respond to [the] decision overruling Roe and Casey,” and he insisted that the Justices could “only do [their] job … to interpret the law … and decide this case accordingly.” In context, Alito was repudiating an argument from the plurality opinion from Casey, that it would have shocked the United States’ popular consciousness too much for the Court to admit that it had decided Roe incorrectly. But the response Alito made to the Casey plurality applies with the same force to the Chief Justice’s gambit. Alito insisted that the Court had a “job” to do—a formal role to play—and that it would get in the way of what is right if it went beyond its job description and tried to act like a national arbiter.

Among the other bad consequences of disregarding their jobs, Justices who went along with the Chief Justice’s gambit would make themselves complicit in a new and unsupported constitutional doctrine. The gambit would have avoided total overrulings of two major Supreme Court decisions. But it asked members of the Court to interpret Roe and Casey to stand for propositions different from what they stood for consistent with standard rules about reading old cases. No matter how they rationalized what they were doing, Justices who took the gambit would have declared and committed themselves to an abortion right, new and significantly different from the rights declared in Roe and Casey. That was one final reason why the gambit asked too much of Justices who understand adjudication as “interpret[ing] the law … and decid[ing a] case accordingly.”

I agree with all of Smarick’s insights about Dobbs. As the foregoing account suggests, however, I think one can learn more about what happened in the case by understanding how judicial restraint, fidelity to precedent, and formalism influence judges. Especially formalism.