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Bench Memos

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Respecting Roe



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I would be among the last persons on earth to impede anyone’s opportunity to overturn Roe. If Sam Alito is inclined to do so, and if he is choosing his words on stare decisis and Roe very carefully to avoid a liberal firestorm, I guess that is fine. Maybe the liberals will even buy it.

But it would still be nice if Alito laid off the “Roe deserves great respect” line. It is not true. It is not true because a) Roe is the most extraordinary judicial usurpation of the twentieth century; b) Roe has grossly distorted our politics since the day it was decided; c) Roe made an act of grave injustice — killing the unborn — into a sacred constitutional right.

It is true, as Alito says, that many people have relied upon Roe – that is, upon legally available and, in many jurisdictions, publicly funded abortions — for decades. But many people relied upon Plessy v. Ferguson for even longer. Brown v. Board of Education rightly overruled Plessy anyway. That Court did not say — nor should it have said — that Plessy “deserved great respect”. In fact, a glance at the Brown opinion reveals that the Court had very little “respect” for Plessy – or none at all.



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