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The Supreme Court this week will hear arguments in the most consequential abortion case since Roe v. Wade. The case, Dobbs v. Jackson Women’s Health Organization, presents the court with the opportunity to overturn Roe and correct one of greatest acts of judicial arrogance in history.
The conventional wisdom is that overturning Roe would cause massive societal upheaval and indelibly damage the court’s legitimacy. In fact, the reality is just the opposite. Overturning Roe will only strengthen the court’s integrity, while perpetuating Roe’s constitutional error under outside pressure would confirm criticisms that the justices are behaving as politicians rather than judges.
In Dobbs, the court considers the constitutionality of a Mississippi law that limits abortions after 15 weeks of gestation with exceptions for health emergencies and fetal abnormalities. The statute conflicts with the court’s controlling abortion cases, Roe and Planned Parenthood v. Casey, which held that laws may not pose an undue burden on abortion prior to viability.
In 1992, the court had the opportunity to overturn Roe in Casey but instead “reaffirmed” the “essential holding of Roe” while replacing Roe’s legal reasoning wholesale.
A notable justification articulated by the Casey court for upholding Roe was its concern for the court’s own legitimacy. The controlling opinion concluded, “[a] decision to overrule Roe’s essential holding” would come at the cost of “both profound and unnecessary damage to the court’s legitimacy.”
But Casey didn’t bolster the court’s legitimacy; it perpetuated the divisions it said it was putting to rest. It is striking that, nearly 30 years later, the court finds itself under unprecedented attack. On any given day, legal pundits engage in theatrical hand-wringing over the court’s “crisis of legitimacy” while left-wing dark money groups and Democratic senators regularly threaten to pack the court if it does not deliver the policy outcomes they desire on the issue du jour.
The amped intimidation campaign against the court closely tracks a confirmation process that has become increasingly hyper-politicized. Nowhere did we see this more than the confirmation of Justice Brett Kavanaugh. The issue of abortion drove intense opposition to Kavanaugh’s confirmation as groups like Planned Parenthood and NARAL organized and financed national speaking tours, ads and armies of protesters.
Today, the court is in the crosshairs. The irony is that it finds itself there because of decisions like Roe and Casey, not in spite of them.
In Dobbs, the court will have the opportunity to undo a grievous wrong.
The major problem with Roe from a constitutional perspective is that the court took something that appears nowhere in that document – and which therefore is left to the states – and promoted it to a fundamental right. Nothing in the Constitution’s text, structure, history or tradition supports this innovation. The court’s exercise of raw judicial power thus usurped Americans’ ability to determine whether and how to regulate abortion.
When the court exercises that sort of judicial supremacy, the justices transform themselves into political figures – the most important and dangerous political figures in the nation. Given this, we shouldn’t be surprised that the confirmation process has become correspondingly more political and even mired in smear campaigns, like Kavanaugh’s was.
As Mollie Hemingway and I wrote in “Justice on Trial,” “[t]he nation’s abortion regime is dependent on the Supreme Court’s decision creating a federal right to abortion.” Accordingly, the Left demands the confirmation of justices who will perpetuate the constitutional fiction of Roe and Casey.
These cases have inflicted serious damage upon our political order and social fabric. And the issue of abortion, as a policy matter, is as contentious as ever.
As Mississippi put it in its Dobbs brief, “Roe and Casey are profoundly unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law and harmed the perception of this court. Retaining those precedents harms this court’s legitimacy.”
In Dobbs, the court will have the opportunity to undo a grievous wrong. By overturning Roe and Casey, the court can acknowledge that those decisions represented a cataclysmic break with the Constitution, and have only undermined American law and politics since they were decided.
For the sake of its own integrity, the court can recognize that the best course is to go back to what the Constitution itself says and allow the American people who possess those reserved rights under the Constitution to determine abortion policy.
Such a decision will allow the court to get out of the business of operating as a de facto medical board, and instead let elected and accountable politicians do the work of shaping abortion policy.
In the years since Roe was decided, the Supreme Court confirmation process has gone completely off the rails and this fall public perception of the court reached an all-time low. The solution? Get the court out of politics, starting with abortion politics.