The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, former-Attorney General Ed Meese wrote an op-ed in the Washington Post, titled "Did the conservative legal movement succeed? That all depends on whether the Supreme Court overrules Roe v. Wade."
Meese sounds many of the same notes I've written about.
First, Roe is the central precedent that inspired the conservative legal movement.
Roe has stood for years as the prime example of disrespect to our Constitution's allocation of power and the proper judicial role. It has been the focus of criticism from judges and legal scholars including Robert H. Bork, Alexander Bickel, William H. Rehnquist and Antonin Scalia. And for good reason. To them and the legal movement they inspired, Roe's judicial supremacy misconceived the Constitution, ignored the lessons of history and encouraged unaccountable government.
Overruling Roe would be the crowning achievement of that movement.
Second, Meese laments that the Reagan administration's biggest legal failure was failing to overrule Roe:
The Reagan administration's most disappointing legal loss was our failure to persuade the Supreme Court to overrule Roe. Now, unlike then, the Supreme Court has six justices who have all expressed some commitment to the Founders' interpretive principles, and who have all been shaped by the institutions, scholarship and renewed dialogue brought to the legal profession by the Federalist Society, originalism and textualism.
Of course, this failure extended beyond Reagan's presidency when Justices O'Connor and Kennedy, as well as Justice Souter, voted to reaffirm Roe in Casey. Meese reaffirms that the Reagan Revolution would support overruling Roe. Donald Ayer is very, very wrong.
Third, Meese writes that failing to overrule Roe would be a repudiation of the conservative legal movement.
But failing to reverse Roe and Casey in a case squarely presenting the question would suggest that the Founders' views cannot compete with the preferred positions of some special interests. For the sake of a republic of laws and not of men, I hope the court will ratify the promise of the Founders' Constitution.
The consequences of Dobbs extend far beyond the midterm elections.
Fourth, Meese observes that the Court's abortion jurisprudence has distorted countless areas of the law, which I referred to the epicycles of Roe.
Subsequent abortion case law has only compounded this judicial willfulness. There is a separate "law of abortion," as Roe's author, Justice Harry A. Blackmun, put it, that distorts or ignores ordinary legal rules so to preserve constitutionalized abortion. With that, many other areas of law — from free speech, religious liberty, voting laws, to mundane matters of civil procedure — have been turned into proxy wars over abortion, because Roe and Casey prevent the court from honestly confronting their lacking basis in the Constitution. In short, constitutionalized abortion epitomizes judicial supremacy because it rests on nothing else.
End the epicycles.
Finally, Meese recognizes that the Court's failure to overrule Roe would have ripple effects on law students, and future lawyers:
The voters who trusted in the public statements of judges to interpret the law as written would have reason to doubt whether their trust was well placed. The next generation of law students would fairly ask whether it is worth standing for neutral interpretive principles when most of a court purportedly committed to them will, when the stakes are sufficiently high, set them aside. These law students will be tempted, understandably so, to abandon this philosophy in favor of a purely results-oriented approach to judging.
Meese channels the message I received from a current 3L.
For four decades, Meese has carried the mantle of the movement. We should all be grateful for his leadership and guidance. I hope other elder statesmen and stateswomen in the movement speak up, soon.