The leaked draft
In May 2022, Bob Zadek devoted an episode to the leaking of a draft opinion by Supreme Court Justice Alito in the case known as Dobbs. Zadek described it as an 86-page draft opinion, scholarly and carefully written, and noted that it was only a first draft, written several months earlier, whose authenticity was not much questioned. He observed that many people would have listeners believe the draft, if it became the final decision and achieved a majority vote, would more or less take away one’s right to an abortion. Zadek framed the discussion on two levels: what the Constitution says about abortion, and what the world of abortion would look like when states are free, as they were for about 185 years, to treat the issue as a pure political decision governed by statutes on a state-by-state basis. Evan Bernick on the Dobbs Draft (2022)
Zadek’s guest that morning was Professor Evan Bernick, with whom he discussed the legal history of abortion rights, the distinction between enumerated and unenumerated rights, and how the court’s shift toward the Glucksberg framework would affect the future of substantive due process and state-level legislation. The episode’s topics also included Roe v. Wade, Casey v. Planned Parenthood, the 14th Amendment, originalism, the right to privacy, and federalism. Evan Bernick on the Dobbs Draft (2022)
The decision and its effect
On the July 4, 2022 episode, Zadek told listeners that the Dobbs decision, the abortion-related decision, overruled and undid the effects of the two major abortion cases, including Casey, and ended 50 years of what he called a Supreme Court-created abortion regime. He asked how to counteract what he called the wrong analysis offered by pundits who announced that the Supreme Court just took away the right to have an abortion, and noted that some elected officials had announced it was the end of democracy. Judicial Round-Up with Clark Neily (2022)
His guest, Clark Neily, described as Vice President for Criminal Justice at the Cato Institute and a scholar on constitutional law, over-criminalization, civil forfeiture, police accountability, and gun rights, stated that Dobbs v. Jackson Women’s Health Organization held quite simply that there is no constitutional right to an abortion. Neily said the decision overruled about 50 years of Supreme Court precedent starting with Roe v. Wade, which had held that there is a constitutional right to have an elective abortion, and that five justices held that this is simply not a plausible way to read the Constitution. Judicial Round-Up with Clark Neily (2022)
Zadek pressed Neily on whether it was an overstatement to say that Roe created a right to an abortion. Neily answered that it is certainly the way some people feel, and explained that when the court protects what is called an unenumerated right—a right not specifically articulated in the text of the Constitution, like the right to freedom of speech—and that right is one somebody likes, people tend to emphasize that we all possess certain unalienable natural rights, some articulated in the constitutional text and some not. He offered two examples: the right to travel around the United States, which he said has never been seriously questioned and is nowhere mentioned in the text of the Constitution, and the right to guide the upbringing of one’s own child, including decisions about where the child goes to school and whether they go to church, which he said is nowhere mentioned in the text but has been enforced for over a hundred years by the Supreme Court. Judicial Round-Up with Clark Neily (2022)
Neily framed the underlying question as whether the court should “invent” such rights because they are not specifically mentioned in the text, or instead “recognize” them because they are plausibly among the unalienable natural rights we all possess whether articulated in the text or not. On abortion, he said some people think the ability to terminate a pregnancy is among the unalienable natural rights and others think it is not, and that he and Jay Schweikert, in the piece they wrote for Cato’s blog, concluded that reasonable libertarians can see it either way, with powerful arguments on both sides and powerful objections to either view. Judicial Round-Up with Clark Neily (2022)
The democratization of rights
A July 8, 2022 episode returned to the same ground with Neily. Zadek again described the Dobbs decision as overruling and undoing the effects of the two major abortion cases, including Casey, and ending 50 years of a Supreme Court-created abortion regime, and again raised the pundits’ claim that the Supreme Court just took away the right to have an abortion. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
Neily repeated his account of the holding: that Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion, overruling about 50 years of precedent beginning with Roe v. Wade, which had held that there is a constitutional right to have an elective abortion; five justices held that this is not a plausible way to read the Constitution, and therefore Roe and Casey must be overturned. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
The episode’s framing paired the abortion holding with the judicial creation of qualified and absolute immunity, describing how the court shifted power back to states regarding abortion while simultaneously insulating government officials from accountability for civil rights violations. The listed topics included Dobbs v. Jackson, abortion, qualified immunity, absolute immunity, Section 1983, police accountability, and judicial activism. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
Across episodes: the same question, twice
The excerpts show the same question argued in more than one episode. In the May 9, 2022 episode, before the final decision, Zadek and Evan Bernick treated Dobbs as a leaked draft whose final form and majority were uncertain, and examined the enumerated/unenumerated rights distinction through the Glucksberg framework and substantive due process. In the two July 2022 episodes, after the term ended, Zadek and Clark Neily treated the decision as final and focused on what it did and did not do, on the pundits’ claim that a right had been taken away, and on the unenumerated-rights question of whether courts “invent” or “recognize” rights. What changed between the earlier and later treatment is the shift from a draft of uncertain outcome to a decided case, and the shift in emphasis from Glucksberg and substantive due process to the federalism and unenumerated-rights framing Neily advanced. Evan Bernick on the Dobbs Draft (2022) Judicial Round-Up with Clark Neily (2022)
What the sources do not cover
The excerpts do not state the reasoning of the final majority opinion beyond the holding that there is no constitutional right to abortion, nor do they identify which amendment the decision turned on. They do not describe the Mississippi statute at issue, the procedural posture of the case, or the identities of the justices beyond Justice Alito’s authorship of the draft. The excerpts also do not report the date the final decision was handed down or the vote count beyond Neily’s statement that five justices held the Constitution does not contain the right.