Anything less would be to do what it has already done for years: make stuff up.
Anything less would be to do what it has already done for years: make stuff up.
D uring the lengthy oral arguments in the case of Dobbs v. Jackson Women’s Health Organization, the always loquacious Justice Breyer suggested that Roe v. Wade could be considered legitimate on the grounds that, back in 1973, “the country, for better or for worse, decided to resolve their differences by this Court laying down a constitutional principle, in this case, women’s choice.” If the Supreme Court is to avoid damaging its reputation with its impending decision in Dobbs, it must assiduously reject Breyer’s line.
Every part of Breyer’s claim is wrong. In no manner did the “country” ask the Court to “resolve” its differences on abortion; the Court did that on its own. In no sense were any of those “differences” actually “resolved” by the Court; as evidence, witness the last 50 years of American politics. And there was no real “constitutional principle” at stake, because Roe was invented from whole cloth.
Shortly after the decision was handed down, the pro-choice legal scholar John Hart Ely explained in no uncertain terms that Roe was “bad constitutional law” on the grounds that it was “not constitutional law and gives almost no sense of an obligation to try to be.” He was correct. Roe was not the result of an unfortunate misinterpretation. It was not the product of a thorny argument over the practical application of the Constitution’s plain text. It was not the sour fruit of a scrivener’s error. It was a contrivance, a fiction, a lie. As Ely noted in the same essay, Roe’s finding was “not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Instead, a majority of the justices wanted it, so they just . . . made it up. Since then, the Court has been faced with a choice: either keep making it up, or at long last admit error.
Some of Roe’s apologists like to insist that if the Court declines to keep making up the law, it will in some way damage its “reputation.” But this is just the concern-troll’s way of indicating that he, personally, will be angry if the justices finally own up to what their predecessors did. As Justice Scalia noted in 1992, Roe did not usher into American life a glorious “pax Roeana” from which nobody serious wishes to exit, but instead “fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” It is certainly true that some people in America would be angered by the arrival of a long-overdue correction, but, in the long run, the Court would be infinitely better off were it no longer obliged to superintend an emotionally charged area over which it has no jurisdiction, and if, in consequence, the passions that abortion law provokes were to be resolved at the ballot box.
There can be no middle ground here. Much as it may wish to, the Court cannot improve its position by tinkering with the rules. In 1992, the Court made a cavalier attempt to transmute one of Anthony Kennedy’s vague and protean sentiments — that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” — into a workable set of regulations. It failed, as it has failed on every occasion since. For comprehensible reasons, the press’s coverage of Roe, Casey, Dobbs, and the rest tend to focus in on the minutiae — on the trimesters, burdens, reliance interests, and the rest. But the central problem with the Court’s abortion jurisprudence is not to be found in this detail; it is to be found in the fact that it has taken responsibility for that detail in the first instance. The issue here is not that Roe said this or that Casey altered that or Whole Women’s Health assumed the other. The problem is that the Court is not permitted or able to superintend this area and that it damages itself every time it tries. It should stop.
Ultimately, the case for Roe comes down to the claim that, like Delta Tau Chi, it has a long tradition of existence. (This, tellingly enough, was also the case made in Casey, which was decided just 19 years after Roe was issued.) But, in a constitutional republic such as ours, this ought to be as irrelevant as it was for Korematsu or Plessy or Schenck. The Supreme Court’s justices have a responsibility to follow the Constitution as it is written — it’s right there in their oath, which vows “true faith and allegiance to the” Constitution, not to the obvious mistakes of their predecessors — and, in Dobbs, they will have a chance to exercise that responsibility.
They must take it.