Ever since the recent leak of Supreme Court Justice Samuel Alito’s draft opinion in the Dobbs v. Jackson Women’s Health Organization case, the media’s focus has rightly been trained on what overruling Roe v. Wade would mean for abortion access in this country. That is unquestionably the most important issue at stake. But the draft opinion’s overruling of another abortion decision, Planned Parenthood v. Casey, raises a more general question about constitutional law that has drawn less attention: Does the occurrence (or absence) of social progress matter for interpreting the Constitution?
Explaining why this question arises requires some background. At issue in the 1992 Casey decision was a Pennsylvania law that included various abortion restrictions, including a 24-hour waiting period and a spousal-notification requirement. Like today, many expected the Court to overrule Roe. But that is not what happened.
Instead, a rare “joint opinion,” written by only three justices (Justices Sandra Day O’Connor, Anthony Kennedy and David Souter—all Republican appointees) forged a compromise of sorts. It upheld (with the conservative justices) most of the Pennsylvania provisions, and it weakened the constitutional standard for evaluating such regulations from one that requires that such regulations serve a “compelling state interest” to one that asks only whether they impose an “undue burden” on women seeking abortions. But it also upheld (with the liberal justices) the “central holding” of Roe, namely a constitutional right to abortion prior to viability (i.e., the time at which the fetus can survive outside the womb); and it struck down the spousal-notification provision as failing to satisfy even the lower “undue burden” standard.
Alito’s draft opinion in Dobbs criticizes Casey on various grounds. It argues that drawing a line at “viability” is arbitrary because it changes as neonatal care advances. It suggests that the “undue burden” standard Casey announced has proven unworkable and difficult to apply consistently. Finally, it heavily criticizes Casey’s argument that overturning Roe would make the Court look too partisan, thereby undermining its own institutional legitimacy. “We cannot allow,” Alito writes, “our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”
And yet the draft opinion neglects entirely what is arguably Casey’s most important rationale for upholding Roe, one that Chief Justice William Rehnquist devoted several pages to criticizing in his dissent in Casey. Although this part of Casey has long been recognized by courts and legal scholars to be important, its reasoning is controversial and raises deep questions about the relationship between moral judgments and social change. For that reason, understanding Casey’s logic requires a little explication.
Casey upheld Roe primarily on stare decisis grounds. That means it focused less on whether the Constitution protects a right to abortion in the first instance than on whether Roe’s holding that it does protect abortion deserves respect as a precedent of the Court. The Court’s answer was “yes.” In support of that conclusion, the Casey joint opinion made an unusual and controversial argument.
The argument was this: when the Court must decide whether to overrule a past decision as big and important as Roe, it should ask whether there has been a change in the relevant “facts” or “understanding of the facts” since the decision was made. The joint opinion illustrated this principle by applying it to two famous overrulings of past decisions. In 1937 the Court overruled the 1905 decision Lochner v. New York, which struck down a maximum-hour law on the ground that it violated the “liberty of contract” implicitly protected by the Fourteenth Amendment. By 1937, the joint opinion reasoned, the Depression had revealed that Lochner rested on “fundamentally false assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare.” Similarly, when Brown v. Board of Education (1954) overruled Plessy v. Ferguson (1896), it had become clear to many more people that Plessy’s doctrine of “separate but equal” could not survive because racial segregation was inherently unequal. Society’s understandings of the relevant facts—the nature of race and racial oppression—had changed.
Roe was different from these cases, the joint opinion reasoned, because no such change in facts or factual understandings had occurred since 1973 when Roe was decided. Abortion was controversial in 1973, and it remained controversial in 1992 (when Casey was decided), but nothing material to how the practice was understood had changed. Therefore, the decision should not be overruled.
That’s the argument. The core idea is that when it comes to major and controversial cases like Roe, the Court should revise its understanding of what the Constitution requires when, but only when, it’s confident that social or moral progress has occurred. For although the joint opinion talks blandly of “changes” in “facts” or “understanding of facts,” its underlying logic depends on the assumption that those changes were good ones, that they either constituted or produced an improved understanding of social and economic life. After all, if those changes were not salutary ones, then there’d be no reason to overturn the previous decision.
In some ways, Casey’s reasoning should sound familiar. The joint opinion is expressing the idea that we have a “living Constitution,” one that adapts to changing times and evolving understandings of our fundamental constitutional commitments. Yet the idea of social progress, or a living Constitution, at the heart of Casey’s reasoning is more philosophically complex, and its ideological valence less clear, than is often appreciated.
The philosophical difficulty lies in the fact that the concept of social or moral progress (which I’ll here treat as synonymous) has both a historical and a moral aspect. To say that a society has experienced progress is to say both that a change has taken place over time and that the change counts as an improvement, morally speaking.
But this gives rise to a dilemma as to which aspect, historical or moral, is doing the heavy lifting when it comes to employing the concept: Do we judge society to be in better shape because of the historical process that led to it? Or is it just the reverse: Do we conclude that a historical process was “progressive” because it produced an outcome we consider morally superior (for other reasons)?
The problem with the first horn of the dilemma is that it seems to suggest a “Whiggish” view of history, one that sees history as inexorably moving towards a better and better world. That view not only seems falsified by experience but also leaves little room for human agency.
The problem with the second horn is that the history part drops out, draining the concept of progress of any real meaning. If progress describes any shift in societal attitudes judged to be morally superior, regardless of what process produced that shift, then the concept is reduced to a conclusory label for those societal changes of which one happens to approve.
The resolution to the dilemma is to grasp ahold of both horns. On the one hand, a belief in social progress authorizes us to think that at least part of the historical explanation for why modern understandings (of, say, the equality of races and sexes) have taken hold is because they represent a moral improvement over understandings they replaced. On the other hand, taking the idea of progress seriously requires recognizing that our moral evaluations of societal or cultural shifts should depend at least to some degree on how that change came about. Was the change a result of exposure to new information and experience? Or was it instead the product of coercion and manipulation?
The Casey joint opinion recognized this complexity in the idea of social progress. Admittedly, it did not say so explicitly. But one of its authors, Justice Souter, elaborated its reasoning in a talk he gave years later on the value of history. The question he raised was: How might we see the eight justices of the Plessy majority, who held racial segregation to be constitutional, as anything but “morally cretinous”?
Souter’s answer was that the Brown justices had learned from events and developments that the earlier Plessy justices had not experienced. True, even by the standards of the day (as Justice John Marshall Harlan’s famous dissent illustrates), the decision could be strongly criticized. But Souter’s point was that things had changed considerably by 1954. By that time the racist science of Plessy’s day had been debunked, the Holocaust had further revealed the horrors of race thinking, and the armed forces had been successfully integrated. As a result, the Plessy justices “could not see as clearly what we can see” today or what the Brown justices could see. The Plessy justices should therefore not be cavalierly condemned.
In short, the justices of the Casey joint opinion recognized that the idea of social progress, properly understood, entails that historical change has at least sometimes been a process of learning. Their claim was that when the Court must decide whether to revise one of its constitutional understandings, its chief consideration should be whether such learning has indeed occurred.
Of course, the political arena has never been known for being conducive to learning. All the less so these days, when political polarization and demographic sorting make meaningful dialogue feel near impossible. It should thus come as little surprise that neither side of the culture war that underlies and shapes our constitutional politics has much use for the sort of learning that the idea of social progress entails.
Conservatives are happy enough to acknowledge progress when it suits them. But they have no real stake in the concept since they are inclined to agree with late Justice Antonin Scalia that societies are just as likely to rot as to experience progress.
Progressives, meanwhile, certainly believe in progress, as the label indicates. But they are often gored by the second horn of the dilemma mentioned above. That is, they fail to appreciate the way in which a commitment to the logic of progress makes history relevant to moral deliberation. So, for instance, the urge to “cancel” historical figures from the past reflects a basic misunderstanding of that logic. It’s precisely because the moral perceptions of those in the past were obscured by racism, sexism and other forms of domination and distortion that we should not hold them to the same standards we apply to our contemporaries.
None of this is meant to fault either conservatives or progressives. They are arguing for their visions of the good or just society. And that’s what politics, especially constitutional politics, is about. More troubling is the Supreme Court’s apparent lack of concern with the logic of progress.
Which brings us back to Dobbs. Strangely, in his draft opinion Alito never criticizes, or even acknowledges, the part of the Casey joint opinion discussed above, even though, as noted, he attacks several other aspects of the opinion. He comes closest to doing so in his discussion of previous overruled precedents (including Lochner and Plessy) when he points out that a 1943 First Amendment decision “stands out because nothing had changed during the intervening period other than the Court’s belated recognition that its earlier decision had been seriously wrong.” This statement seems to acknowledge Casey’s point that when Lochner and Plessy were overruled a great deal had changed, while also implicitly rejecting Casey’s holding that such social change was necessary to justify overruling a past decision.
But that’s it. There’s no real discussion in the draft opinion of Casey’s emphasis of the relevance of a “changed understanding of facts” for constitutional interpretation. And it is curious why. Perhaps Alito did not consider it an important part of Casey’s holding; perhaps another justice objected to his treatment of it; or perhaps he simply did not know what to make of the argument, maybe even for some of the reasons stated above.
Whatever the reason, the omission is unfortunate, because one could imagine a lively debate among the justices as to whether understandings of the relevant facts have changed meaningfully since Casey itself. Alito could argue that advances in neonatal care have produced a change in the “understanding of the facts” related to fetal development. Dissenting justices might counter that the tight connection between abortion access and women’s equality has only become more and more apparent as such access has become tacitly assumed, even as abortion rates have declined. Meanwhile, opinion polls suggest that changes in public attitudes toward abortion have not moved considerably in either direction since Casey’s time (though Dobbs itself may produce one).
Perhaps we will indeed see such a debate when Dobbs comes down. But I doubt it. A Supreme Court confident in its own ability to announce with certainty how the often-competing constitutional principles of liberty, equality and self-government are properly balanced today will see little rhetorical value in endorsing a view of the Constitution that renders its applications vulnerable to unforeseeable shifts in social understandings.
Even so, for as long as the Supreme Court finds itself in the position of mediating our culture wars, it will be hard for it not to be sensitive to the forces that produce social change over time. That is true even when—and perhaps especially when—the Court does not admit it.
Photo credit: Matt Wade, “James Earle Fraser’s ‘The Contemplation of Justice’” (CC-BY-SA-3.0)