[This article was co-authored by Robert P. George and Christopher Kaczor.]
In Roe v. Wade seven members of the Supreme Court of the United States imposed their moral belief that women have a right to abortion on the American people. Most jurists and constitutional scholars recognize that the decision lacked any basis in the text, logic, structure or original understanding of the Constitution. Nevertheless, Roe has been in place for nearly 49 years and the Court reaffirmed its basic holding in the 1992 case of Planned Parenthood v. Casey.
Today the Supreme Court is on the verge of overturning these cases. After all, why stick with a constitutionally unjustified ruling? The answer proposed by supporters of Roe and Casey is that precedent (stare decisis) requires it.
It’s true that in our legal system precedent sometimes provides a reason for courts—even the Supreme Court—to stick with a decision that is incorrect. But the operative word here is “sometimes.” Often, the Supreme Court’s constitutional duty requires that the Justices correct their predecessors’ errors by reversing wrongly decided cases—even when those cases have stood for decades and been reaffirmed in the interim. Overturning a Supreme Court ruling is scarcely unheard of or even particularly novel. The Court has done it nearly 150 times.
In Dred Scott v. Sandford, the Supreme Court declared that slaves remained slaves even when taken into free territory, that Congress lacked the power to prohibit slavery even in the federal territories and that Americans of African descent could not be citizens and “had no rights that the white man was bound to respect.” Abraham Lincoln and the Republican-controlled Congress refused to treat the decision as constitutionally legitimate and binding upon the executive and legislative branches of government. The 13th and 14th Amendments to the U.S. Constitution formally overturned Dred Scott.
In Schenck v. United States, the Supreme Court upheld a law banning the distribution of leaflets against enlisting in military service, ruling that such speech amounted to a “clear and present danger.” In a per curiam opinion, Brandenburg v. Ohio, the Court later rejected such restrictions on free speech.
In Lochner v. New York, the Court found unconstitutional a state law that forbade employers to require or permit employees in industrial bakeries to work more than 10 hours a day and 60 hours per week. Later, the Court effectively reversed the decision by finding similar worker protection laws to be constitutionally permissible. In Adkins v. Children’s Hospital, the Court invalidated a federal law establishing a minimum wage for female workers. West Coast Hotel Co. v. Parrish overturned that decision.
In 1896 in Plessy v. Ferguson, the Supreme Court upheld de jure racial segregation statutes, e.g., requiring separate railway cars for blacks and whites. The legal recognition of “separate but equal” facilities for people of different races remained part of the Court’s jurisprudence for more than 50 years, but was overturned in 1954 in Brown v. Board of Education.
In Buck v. Bell, the Supreme Court relied on ideologically charged “science” in ruling that compulsory sterilization of the “feeble minded” to promote “the protection and health of the state” was constitutionally permissible. Justice Oliver Wendell Holmes, a pillar of the liberal establishment, in the opinion for the Court, declared that “three generations of imbeciles are enough.” Today, the ruling is regarded not only as a disgrace and an embarrassment, but as a dead letter.
In Korematsu v. United States, decided during World War II, the Supreme Court approved the internment of Americans of Japanese descent who had not been convicted or even accused of a crime. No Justice on today’s Court accepts that ruling as a binding precedent.
In Adler v. Board of Education, the Court upheld certain laws that banned teachers who were viewed as subversive from the classroom. This decision was reversed in Keyishian v. Board of Regents of the University of the State of New York.
The reversibility of constitutional rulings by the Supreme Court is shown more recently by Bowers v. Hardwick (which ruled laws banning homosexual sodomy are constitutionally permissible) and Lawrence v. Texas (which ruled such laws are unconstitutional). There is no unanimity on which of these cases correctly interpreted the Constitution, but the Court was wrong in at least one of them, and clearly reversed itself.
Similarly, the Court reversed itself on the question of mandatory flag salutes and recitations of the Pledge of Allegiance in public schools in the cases of Minersville School District v. Gobitis (1940) and West Virginia v. Barnette (1943). Yes, you read those dates correctly—the justices reversed themselves in the short span of three years.
Someone might reply to this long record of reversals that rulings that have been reversed are all “conservative” judgments against equality or justice. They were later overturned by liberal rulings in favor of “progressive” outcomes. So, if history is any guide, Roe and Casey here to stay—abortion being, it is supposes, a “liberal” and “progressive” cause.
In fact, progressives were aboard—indeed they were in the driver’s seat of—the eugenics bandwagon that produced Buck v. Bell. In Korematsu, the opinion upholding the internment of Americans of Japanese descent—as carried out by Franklin D. Roosevelt and requested by liberal lion Earl Warren (then attorney general of California)—was joined by the Court’s leading liberals: Hugo Black and William O. Douglas. The comparatively conservative Frank Murphy dissented.
Moreover, people of good will today—not just liberals but also conservatives and moderates—reject racial discrimination, forced sterilization and unjust exploitation of workers. As liberal law scholar Erwin Chemerinsky pointed out:
The power of these examples is that they are non-partisan. Liberals and conservatives alike can agree that the court was wrong in Dred Scott v. Sanford in holding that slaves are property and not citizens, in Plessy v. Ferguson in upholding separate but equal and in Korematsu v. United States in ruling in favor of the authority of the government to evacuate Japanese-Americans from the west coast during World War II.
We believe that the Court’s decisions on abortion, precisely because they lack any foundation in the text, logic, structure or historical understanding of the Constitution, can and should be formally overturned. They are not merely mistaken interpretations of the Constitution; they can scarcely be described as interpretations at all. They represent the sheer imposition of judicial will—the “exercise of raw judicial power,” as liberal Justice Byron White said in his dissent in Roe.
What’s more, The Court’s unwarranted exercise of raw power did nothing to temper the division and much to enflame it. In that respect, as in others, it profoundly resembles Dred Scott v. Sandford, and deserves to join that infamous ruling on the ash heap of history.