Last Friday, June 24, 2022, I was elbows-deep into my message about how memories are stored and retrieved in our brains when I felt the first reverberations from the Dobbs v. Jackson Women's Health Organization decision released by the Supreme Court of the United States. The Court overruled Roe v. Wade, 410 U.S. 113 (1973), determined that a woman's right to terminate her own pregnancy is not a right protected by the Constitution, and instructed that legislation regulating or eliminating the right to an abortion need only satisfy rational-basis review.

Ignoring all of my better-instincts, I put my message about retrieved memories on hold, and am now freestyling about the Dobbs decision, or at least some aspects of it. I hope I do not have the same regrets Jerry Maguire did, after he impulsively drafted and circulated his mission statement about sports agency in the middle of the night, via those old school cubbies. (Jerry Maguire, 1996.)

In Dobbs, Chief Justice John Roberts concurred only in the judgment and criticized the majority for failing to adhere to the fundamental principle of judicial restraint. The Chief Justice reminded his Court that "[i]f it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." (Dobbs *66.) The Chief Justice further remarked that:

A thoughtful Member of this Court once counseled that the difficulty of a question 'admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.' (Dobbs *71.)

Chief Justice Roberts characterized the holding as "unsettling" and "a serious jolt to the legal system," and stated that "[b]oth the Court's opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share." (Dobbs *70-71.)

Early in the 93-page opinion, the Dobbs majority acknowledged that the Due Process Clause of the Fourteenth Amendment guarantees some rights that are not explicitly mentioned in the Constitution, but that "any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" (Dobbs *7.) The Court described the need for "historical inquiry" into centuries of Anglo-American common law tradition in order to determine whether the right to an abortion qualified as a liberty interest protected by the Due Process Clause. (Dobbs *11.) Several pages of the opinion are then dedicated to identifying various laws enacted in the United States or England during the 500 years preceding the Roe decision, indicating that abortion was considered a crime. Thereafter, the Court concluded that the existence of these laws, and the absence of any statutory or constitutional provisions protecting a woman's right to terminate an unwanted pregnancy during this 500-year period before Roe, unequivocally demonstrated that the right to an abortion is not a right "deeply rooted in this Nation's history and tradition." (Dobbs *12-13.)

I must be missing a piece of the puzzle, because this seems like a rigged-inquiry based on circular reasoning. Why would there be laws protecting a woman's right to choose an abortion during the same period in our not-so-distant history that a man was exempt from prosecution for the rape of his wife, based, in part, on the fact that women were literally considered to be the property of their husbands or fathers. See To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv. L. Rev. 1255 (April 1986). Similarly, it is not surprising that there were laws making abortion a crime during the centuries before Roe, when women, and, undoubtedly, the children growing within them, were considered to be the property of men.

Justice Clarence Thomas, who was appointed to the Court in 1991, upon the retirement of Justice Thurgood Marshall, wrote a separate concurrence in Dobbs. In sharp contrast to the Chief Justice's concerns about judicial restraint, Justice Thomas, quite excited to do even more, emphatically described the Court's "duty to 'correct the error' established in [substantive due process] precedents," specifically identifying the "demonstrably erroneous decisions" of Griswold v. Connecticut, 381 U.S. 479 (1965) (right of married persons to obtain contraceptives), Lawrence v. Texas, 539 U.S. 558 (2003) (right to engage in private, consensual acts), and Obergefell v. Hodges, 576 U.S. 644 (2015) (right to same-sex marriage). (Dobbs *58.)

Fittingly, it was Justice Thomas' appointment that created a conservative majority on the Court, and the opportunity for Republican politicians to pivot 180 degrees and openly-advocate for expanded judicial "engagement." Judicial engagement/activism is typically at odds with the doctrine of judicial restraint, but it is regularly taken out of the toolbox when changes to the political majority occur faster than changes to the life-tenured majority on the Supreme Court. Because the working majority on the Court determines which cases the Court will hear, the discretionary selection process itself has a profound effect on the substantive impact which the Court has on the citizens, the country, and our perceptions of justice.

Our ideas and expectations about justice and liberty clearly evolve over time, sometimes travelling along graceful arcs and other times via sharp turns. In Dodd, the Court acknowledges that the Constitution protects those unenumerated rights "deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty." An objective and honest unpacking of this statement gets you anywhere . . . and nowhere. The Dobbs majority cautions that this analysis must be exercised with the "utmost care," "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court." (Dobbs *11.) This seems to be precisely what has occurred in Dobbs, maybe intentionally, but probably unwittingly. Despite aspiring to be a government of laws, and not men, we are limited by our innate inability to consciously and accurately perceive, make associations, and appreciate the motivations behind even our own thoughts and actions.

. . . I'm beginning to feel your pain Jerry Maguire.