Abortion and Precedent

Published September 19, 2005

National Review Online

Judge Roberts’s chief strategic objective in his confirmation hearing was to secure the support of Chairman Specter — a vocal supporter of Roe v. Wade — without losing the support of conservative Republicans on the Senate Judiciary Committee. It is a testament to Roberts’s skills as an advocate that his remarks at his confirmation hearing on abortion and stare decisis have been understood by Specter and many other supporters of Roe as suggesting that he would not vote to overrule Roe. What seems not to have been noticed is that Roberts in fact deftly repudiated Specter’s notion that Roe is some sort of “super-duper precedent” entitled to “super stare decisis.” In so doing, he marked the path for the eventual overruling of Roe.

Specter’s “super stare decisis” notion implies that there is an especially high wall that would need to be surmounted to overrule Roe. But Roberts reconceived this single high wall as two successive hurdles that would have to be cleared: first, the precedent in Planned Parenthood v. Casey on whether or not to revisit Roe, and second, the precedent in Roe, as modified by Casey, on what abortion regulations are permissible and on the standard of review to be applied to them. Roberts’s phrasing cleverly obscured the point that it is far easier to go over two hurdles in succession than over a wall that is the height of the two hurdles combined.

Roberts’s statement that Casey is “settled as a precedent of the Court, entitled to respect under principles of stare decisis” is definitional boilerplate in Roberts’s usage. As Roberts employs the terms, anything that qualifies as “precedent” is “settled,” and all precedents of the Court are “entitled to respect.” In Roberts’s words, Casey is “entitled to respect like any other precedent of the Court.”

Roberts stated in his hearing that “it’s vitally important that nominees, to use Justice Ginsburg’s words, [give] no hints, no forecasts, no previews” of issues that are likely to come before them. Unlike some who think he was trying to telegraph his position on Roe, I think that he was steadfastly adhering to this standard.

That said, those like me who believe that the issue of regulating abortion must be restored to the democratic processes should take comfort in Roberts’s analytical framework. The first hurdle — overturning Casey as a precedent for applying principles of stare decisis to Roe — is easily cleared: The principles of stare decisis invoked in Casey were contrived for that case and are in conflict with the Court’s other precedents on precedent (such as Lawrence v. Texas, as Scalia’s dissent in that case points out). Moreover, what Scalia aptly described in his Casey dissent as the majority’s “Nietzschean vision of us unelected, life-tenured judges — leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals'” — is profoundly antithetical to the American understanding, and Roberts’s stated understanding, of the role of the Court.

The second hurdle should likewise prove insubstantial. The “undue burden” standard that resulted from Casey‘s modification of Roe is patently subjective and unworkable, as illustrated by the fact that its inventors split on its application to a ban on partial-birth abortion in Stenberg v. Carhart. Casey itself eroded Roe, and there will be plenty of occasions for further erosion. The political processes are fully capable of determining abortion policy and of identifying and protecting any legitimate reliance interest that anyone might have in Roe. And the grossly distorting effect that Roe continues to have on American politics, and on the confirmation process for Supreme Court justices, provides compelling reason to jettison Roe.

In his testimony, Judge Roberts described Brown v. Board of Education as a “restrained” decision. In ruling that segregated public schools were unconstitutional, Brown effectively overruled the nearly six-decades-old error of Plessy v. Ferguson, and its removal of government-sponsored segregation from the political processes predictably resulted in tremendous disruption of established practices. Overturning Roe would lead to far less disruption, as it would return the issue of abortion policy to the people to determine through their elected representatives. Let’s hope that Chief Justice Roberts one day leads the Court down the path that he has marked.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations. Whelan worked for the Senate Judiciary Committee from 1992 to 1995.

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