Should Gradualism Have Prevailed in Dobbs?

Abstract Gradualism should have won out in Dobbs. In general, the Supreme Court should not impose massive disruption without first providing notice of its contemplated course of action. Only the chief justice followed that principle, and as a result his decision is the most compelling. By contrast, the majority’s most plausible rationale was steeped in judicial statecraft: the majority claimed that only grand, decisive action could meet the challenge at hand. But by acting in haste, the Court compromised its own deliberative process and prevented the public from adequately preparing for an avulsive shift in the law. The joint dissent’s treatment of precedent was even less persuasive. The dissent’s own uses of precedent demonstrate how readily case law is thrown overboard. So if the majority had reason to moderate, the dissenters did, too—by joining a gradualist opinion like the chief’s.