In 1959, Herbert Wechsler delivered a famous lecture at Harvard titled "Towards Neutral Principles in Constitutional Law" - this was a watershed moment in the history of American constitutional law. It focused on the need for Supreme Court Justices to act in an objective and impartial manner as opposed to the acting as a political instrument similar to the Legislative and Executive branches. The use of neutral principles to decide constitutional cases is relevant today after the Court handed down its opinion in Dobbs v. Jackson Women’s Health Organisation. Post-decision commentary has leveled the charge that Dobbs was a politically motivated decision as opposed to an act of objective jurisprudence truly consistent with the American system of “government of laws and not of men". This article will discuss the context and content of Wechsler’s lecture and offer a brief analysis of the majority and dissenting opinions on Dobbs, in accordance with Wechsler’s neutral principles.
Towards Neutral Principles in Constitutional Law was delivered four years after an unanimous court decided Brown v. Board of Education, holding that the racial segregation of American public education was unconstitutional and overturning the decision in Plessy v. Ferguson. Following Brown, the Supreme Court was publicly criticised by many pro-Segregation politicians and individuals who subsequently organised a policy of "Massive Resistance" to the program of nationwide desegregation decided by the Supreme Court. Aside from the political outrage created by the decision, there was opposition from the legal profession to the decision in Brown. Judge Learned Hand, perhaps one of the most revered American judges in history, was critical of the Court’s apparent activism in the Brown case, calling the Supreme Court a “a third legislative chamber” due to the Court’s application of its political preferences to the issue at hand.
Wechsler’s lecture was delivered in response to this critique made by Hand and, unlike Hand, was willing to accept judicial review by the Supreme Court. Judicial review was inherent in Article III of the Constitution; the Court cannot “escape from the judicial obligation,” and that “duty cannot be attenuated.” Part of this duty requires the courts to judge if the other branches of government are acting in a manner consistent with the Constitution. According to Wechsler, the courts need a standard to follow in their interpretation of the law that can be “framed and tested as an exercise of reason and not merely as an act of willfulness”. Without a reasonable standard of decision at all, Wechsler warns that:
“The man who simply lets his judgment turn on the immediate result... implies that the courts are free to function as a naked power organ [and] that it is an empty affirmation to regard them... as courts of law".
To avoid the ad hoc nature commonly found in political machinations, Wechsler insists that our constitutional decision-making “must be genuinely principled… [with] reasons quite transcending the immediate result.” This shouldn’t be construed by Wechsler to mean that one principle of constitutional theory controls the decision, rather the decision must simply have sufficient reason(s) to overturn the “value choices of the other branches of the government.” The Court’s role is therefore to continually examine the reasons advanced by itself and by those who litigate within and to conclude whether the reasons advocated are sufficiently reasonable as part of our Constitutional structure.
In Dobbs, we find the most controversial case since Obergefell v. Hodges was decided. For some the Court’s decision has furthered the polarisation of the political spectrum. There is the danger that the decision has decreased the legitimacy of the Court as an institution as it removes a Constitutional right established 49 years ago. Wechsler’s theory can help to establish this decision either as an act of judicial policymaking or as a genuinely principled result.
The majority opinion of Dobbs, authored by Justice Samuel Alito, justifies its overruling of the Court’s precedents in Roe and Casey by arguing that these are not rooted in the history and tradition of the United States and nor is the right to abortion directly referenced in the Constitution. Alito’s opinion does not state that the Constitution only grants enumerated rights but, rather, that for a right to be implicit in the Constitution it must be in accordance with the standard delineated in Washington v. Glucksberg. As a result, rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”. Alito relies on the history of common law treatment of abortion restrictions, state criminal statutes on abortion at the time of the Fourteenth Amendment’s ratification and the criminal statutes at the time of Roe v. Wade. Across these three periods, Alito notes that restrictions on abortion were commonplace such that a right to abortion cannot be said to be implicit in the Constitution.
Does Alito’s reasoning run counter to deciding on Constitutional questions in a neutral and objective manner? Although Wechsler does not provide us with the means for ascertaining this, perhaps a brief thought experiment might bear it out if one believes that Alito’s reasoning fails to “transcend the immediate result”. If the Dobbs case had not been about abortion but rather about freedom of contract, Alito’s reasoning would find that there is a long history of a right to economic contracting within which are examples of governmental interference against an unlimited right to contracting.
The Court in West Coast Hotel v. Parrish found this exact issue, overruling over 20 years of freedom of contract precedent that began with Lochner v. New York. Although West Coast Hotel differed in terms of its legal reasoning, the same judgment could be arrived at by utilising the same standard applied in Dobbs, as unlimited economic rights have never been “deeply rooted in this Nation’s history”. If equally applied across cases involving questions of substantive constitutional rights, as highlighted above, the Dobbs majority’s reasoning does appear to succeed as a neutral principle of Constitutional law.
The dissent in Dobbs argues that Roe must be upheld for the sake of stare decisis and the potential repercussions of the Court’s ruling. Stare decisis deems Roe such an important precedent because women across the United States “have relied, and continue to rely, on the right to choose”. Therefore, the Court’s move to overturn Roe v. Wade has “erased the woman’s interest [in her reproductive life] and recognises only the State’s”. The dissent argues that the majority’s move to overturn Roe would lead to corollary rights such as same-sex marriage and contraception being struck down. If these are neutral principles of constitutional decision-making, then we should expect stare decisis and repercussions to be principled exercises of reason.
Stare decisis as a legal doctrine certainly has the potential to be a neutral principle of Constitutional law since it attempts to preserve the integrity of the legal process. As the dissent itself notes, stare decisis provides that things can change if “there is a very good reason.” However, the use of stare decisis poses a problem for the dissent: if the precedent was poorly reasoned (or lacked neutral principles), then can the demands of stare decisis remain? The critiques of scholars such as John Hart Ely push against the reasoning of Roe and argue that it is inherently defective in its use of substantive due process doctrine. If Roe was defective to begin with, then it seems hardly "neutral" for the dissent to treat Roe v. Wade as a precedent that should continue to exist as law.
Neutral principles provide a framework for ensuring the rule of law and objectivity in our legal system. However, Wechsler’s neutral principles are neither conclusive nor do they capture deep Constitutional issues in their totality; they simply offer a means of guiding the Court’s decisions. It is thus important to consider the Dobbs decision with additional constitutional theories. Such considerations might include the strength of precedent or the role of history in Constitutional analysis, both of which were mentioned in Dobbs. If Dobbs has truly been principled, then the life of the law will bear this out. If the opposite, then one can hope that it may one day reverse itself. In the meantime, let us hope that reasonableness will transcend the urge to acts of judicial willfulness.