As President Reagan’s White House counsel and as Attorney General, Ed Meese was a leading architect of the modern conservative legal movement. In this Washington Post op-ed, Meese soundly observes that the question whether that movement can be judged to be a “success” will turn on whether the Supreme Court in Dobbs v. Jackson Women’s Health Organization (to be argued on Wednesday) overrules Roe v. Wade and Planned Parenthood v. Casey and “return[s] the issue of abortion where it belongs, to the people” in our fifty states.
Roe has stood for years as the prime example of disrespect to our Constitution’s allocation of power and the proper judicial role. It has been the focus of criticism from judges and legal scholars including Robert H. Bork, Alexander Bickel, William H. Rehnquist and Antonin Scalia. And for good reason. To them and the legal movement they inspired, Roe’s judicial supremacy misconceived the Constitution, ignored the lessons of history and encouraged unaccountable government.
And the 1992 case that preserved Roe’s “essential holding,” Planned Parenthood of Southeastern Pennsylvania v. Casey, showed that Roe and subsequent abortion case law are not governed by the ordinary principles of stare decisis, the notion that the court should not abandon its precedents without strong reason.
Subsequent abortion case law has only compounded this judicial willfulness. There is a separate “law of abortion,” as Roe’s author, Justice Harry A. Blackmun, put it, that distorts or ignores ordinary legal rules so to preserve constitutionalized abortion. With that, many other areas of law — from free speech, religious liberty, voting laws, to mundane matters of civil procedure — have been turned into proxy wars over abortion, because Roe and Casey prevent the court from honestly confronting their lacking basis in the Constitution. In short, constitutionalized abortion epitomizes judicial supremacy because it rests on nothing else.