If Edmund Burke were alive today and participating in the opinion writing currently taking place at the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organization, he would vote to overrule Roe v. Wade. Burke is famous for recognizing the value of long-established traditions, but he was no apologist for institutional error.
Roe should be overruled. Almost no one believes it was rightly decided. Instead, the parties defending the case rely almost entirely on stare decisis, the judicial doctrine holding that judicial constancy is better than judicial correctness.
Yet Roe and later abortion cases are not just wrong, but egregiously so. Roe has thwarted the democratic process and made blood sport of judicial confirmations. It has proven hopelessly unworkable. Fifty years of legal and factual development have further demonstrated how wrong Roe is. Stare decisis should be no barrier to overruling Roe.
The Edmund Burke Test Says Go Even Farther
Might Burkean humility require more? Chief Justice John G. Roberts Jr. relied on Burke to suggest that judges should adopt “a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday.” Because, as Roberts quoted Burke, the “private stock of reason . . . in each man is small, . . . individuals [should] avail themselves of the general bank and capital of nations and of ages.”
In the passages quoted by the chief justice, Burke was availing to historical wisdom as a statesman. But Burke was not a status quo statesman, whatever the cost. Rather, he was an opponent of the slave trade and in favor of American independence.
Burke made clear he did not believe in absolute stare decisis, either. When the British Parliament dissolved during the impeachment trial of Warren Hastings, most lawyers assumed, based on precedent, that the impeachment trial had lapsed. Burke argued that precedent should not control. “[P]recedents” — far from binding unassailable authority — are merely “evidence of legal tradition.” They are “one ground, though only one ground of legal argument.”
Rather than deferring to the “bank and capital” of prior judicial reasoning, Burke identified five criteria needed for precedent “to have the qualities fit to render them of full authority in law”: [1] numerous; [2] concurrent and not contradictory and mutually destructive; [3] made in good and constitutional times; [4] not made to serve an occasion; and [5] agreeable to the general tenor of legal principles.
Fluking Burke’s Test
Roe flunks at least three of Burke’s five-part test. First, American abortion law is contradictory. Roe relied on a trimester framework. Casey overruled this framework (along with several other of the Supreme Court’s abortion cases) and substituted the novel undue burden standard. Then, the Supreme Court came to opposite results in two nearly identical partial-birth abortion cases. Today, the lower courts cannot agree on what the undue burden standard even is.
Second, Roe was not decided in “good and constitutional times.” For 50 years, the Supreme Court has flitted from one constitutional rationale to another, unable to find the right to an abortion anywhere in the Constitution. Justice Ruth Bader Ginsburg called the decision “difficult to justify” and Justice Elena Kagan describes such former judicial endeavors as “policy-oriented” with judges “pretending to be congressmen.”
Third, Roe is not “agreeable to the general tenor of legal principles,” but departs from those principles at every turn. It is flatly inconsistent with the Supreme Court’s substantive due process precedents. It arrogates the judicial over the legislative. And it makes a mess of every area of law it touches.
The Supreme Court has limited its ability to discover extra-constitutional rights since the days of Roe. For a liberty interest to be protected by the Fourteenth Amendment, it must be “deeply rooted” in our nation’s “history and tradition.” No such right to abortion exists.
Roe overturned the law of nearly every state. And while there might be some debate about the rare circumstances in which common law failed to find abortion an indictable offense (due to evidentiary issues), there is no evidence of a custom protecting abortion.
Further, the Supreme Court has crafted rules — good for abortion law only — on everything from the standard for facial challenges, to severability, to third-party standing. As Justice Sandra Day O’Connor put it, “no legal rule or doctrine is safe from ad hoc nullification” in an abortion case. Roe is not agreeable to the general tenor of legal principles.
In sum, Roe is not a product of tradition. Nor is it a humble decision. Roe is a breathtaking assertion of judicial authority over a divisive social issue. To refuse to overrule Roe is to suggest that the judicial branch cannot err. But humility is the ability to admit something is wrong. The humble approach is to admit the Supreme Court made a mistake in 1973. Humility is to overrule Roe.
