Jonathan, I’m a little confused about this–maybe you could help me out. First: “This is the test outlined in Casey–and this test is not a problem.” Doesn’t Casey have a 2,500-word section on how the burden that those who want to overturn a precedent have to meet is higher the more that precedent has been criticized? It’s hard for me to see how all that business about “overrul[ing] under fire” can be read any other way. This seems pretty hard to defend–and it leads me to question two. You suggest that you can see Roberts voting to overturn Roe at some point in the future. Obviously if criticism is a good reason not to overturn Roe, it’s going to be extremely difficult to overturn it; there are few decisions that have gotten more criticism. But even if we leave that aside, it doesn’t seem as though the factors that Roberts invoked to justify overturning precedent would apply. He suggests that a precedent may have to be overturned if it proves unworkable or if there has been doctrinal erosion: e.g, the precedents on which the precedent relied have been overruled. Neither seems to be the case with Roe. Unless there’s something about “workability” in this context I don’t understand, I don’t see how it’s “unworkable” to keep striking down anti-abortion laws. Monstrous, I’ll grant. Unworkable? And the Court has hardly undermined Roe’s foundations. It has, if anything, constructed defensive fortifications around it. So what am I missing, professor? I would be delighted to hear why I’m wrong, as you can imagine.
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About the Author
Ramesh Ponnuru is the editor of National Review, a columnist for the Washington Post, and a fellow at the American Enterprise Institute.
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