Wednesday, May 4, 2022




I was in law school when Roe v. Wade was decided. Pretty much everyone was shocked because it was such a terrible decision. Someone took a poll of law professors and, as I recall, 85% said they thought the decision was wrong.

Roe has had a negative impact on both the Supreme Court and on American politics. It set the precedent for regarding the Constitution not as a document, but as a distillation of liberal opinion. Thus we have seen a series of bogus “constitutional rights” created out of whole cloth, and the Court has come to be regarded as a political body, a kind of super-legislature.

At this point, the main argument for preserving Roe was stare decisis, fidelity to precedent; in particular, the idea that it and its successors were so firmly embedded in our law that it would be impractical to remove them. But this was never right. It is true, as Justice Brandeis memorably said, that there are some issues where it is more important that they be settled, than that they be settled right. The main reason for this is the reliance interest: when the courts announce a rule of law, private parties often make important arrangements in reliance on it. Thus, reversing the rule can cause injustice, even if the new rule is theoretically superior to the old.

But in the case of Roe, there is essentially no reliance interest. A young woman might engage in sexual activity without taking precautions to prevent pregnancy, relying on the easy availability of abortion. But that reliance, by its nature, is of short duration. Sexually active women have plenty of notice that laws relating to abortion may change in the jurisdiction where they live, and they can take precautions accordingly.

In the end, Roe is like Dred Scott: an appallingly bad decision that represents an affront to the Court and to this country until it is finally overturned. Assuming that happens when the case is actually decided, it will be an important step toward restoring the Constitution and the rule of law.

As to the leak, I find it puzzling. Maybe the leaker was trying to help the Democratic Party in the midterm elections by firing up the base. But the decision would have been released in June in any event. I don’t see how leaking it a month or two early matters much. Alternatively, as many have suggested, the leaker may have been trying to pressure one of the anti-Roe justices to change his or her mind. But any Supreme Court clerk should understand that such a gambit can only backfire. Justices do occasionally change their votes, and that might have happened here, although it seems unlikely. But the leak, it seems to me, makes it virtually impossible for any justice to change course, so as to turn the draft majority opinion into a dissent. No justice can be perceived as yielding to partisan pressure in that way. And the leak perhaps makes it more likely that Chief Justice Roberts, whose position apparently is unknown and likely undetermined, will join the majority.

So I don’t understand what the leaker had in mind. That said, I don’t agree with those who think the leaker’s career is now destroyed. On the contrary, his or her identity will soon be known, and he or she will become a hero of the Left, perhaps bypassing the law altogether in favor of a lucrative career on CNN or MSNBC.

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