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And Justice Alito himself was well aware of the pair of flag-salute cases. He invoked West Virginia Board of Education v. Barnette in an effort to show that overruling precedent has a noble lineage. He fudged the point, however, in his bland description of what had impelled the court’s reversal in 1943, saying only that “Barnette 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.”
For Barnette to be useful to Justice Alito, he had to make it stand for “nothing had changed” because during the 50 years between Roe v. Wade and Dobbs, nothing really did change. Nothing, that is, except the steady accumulation of justices put on the court by presidents who had pledged, in the Republican Party platform that all the party’s presidential candidates ran on from 1980 to 2020, to appoint judges and justices who would overturn Roe. Finally, on last June 24, there were enough of them.
Another difference between Barnette and Dobbs is that the three justices who changed their minds after the first flag-salute case were motivated by facts, not by ideology or by passing a nomination litmus test. Justices Hugo Black, William O. Douglas and Frank Murphy were appointees of President Franklin D. Roosevelt, who it’s safe to assume during the early 1940s had other concerns than how his appointees might vote on whether children could be compelled to salute the flag. Donald Trump, by contrast, announced during his presidential campaign that his Supreme Court appointees would overturn Roe v. Wade “automatically.” All three of his nominees, Justices Gorsuch, Kavanaugh and Barrett, did just that when the moment arrived.
So no, I don’t think the Dobbs justices are sorry. They did what they were put there to do, what they wanted to do, and they were quite explicit in washing their hands of the consequences. The issue of abortion, Justice Kavanaugh wrote in his concurring opinion, “will be resolved by the people and their representatives in the democratic process in the states or Congress.” And if “the people” in whose hands the court placed the issue are sorry about Dobbs? They can follow Justice Kavanaugh’s advice and take their sorrow, or their fury, or their despair to the polls.
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
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