The Volokh Conspiracy

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New in Newsweek: The Roberts Court is Poised To Unravel Roe v. Wade's Precedential "Paradox"

"On Wednesday, two current members of the Court channelled the logic of the Justices they clerked for."


Newsweek had published my new essay, titled The Roberts Court is Poised To Unravel Roe v. Wade's Precedential "Paradox."

Here is the introduction:

On Wednesday, the Supreme Court considered the validity of Mississippi's 15-week abortion ban. Yet, there was surprisingly little discussion about whether the 14th Amendment of the Constitution, as it was originally understood, permits the states to prohibit pre-viability abortions. Rather, the bulk of the two-hour proceeding focused on whether the Court should stand by Roe v. Wade, the landmark 1973 precedent that conjured a constitutional right to abortion.

Roe's defenders argue that overruling the precedent would be unpopular, so the Court should maintain this obviously erroneous decision to avoid weakening the Court's public standing. But this position is paradoxical. The Court's legitimacy depends on independent jurists who faithfully decide cases based upon written law. By contrast, judges who base their decisions on popular opinion subvert the Court's legitimacy.

Thankfully, the Roberts Court now seems poised to unravel Roe v. Wade's precedential paradox. After oral arguments, a majority of the justices seem to agree that Roe should be overruled because it is wrong, regardless of how supporters of that decision will respond. The Court, in other words, appears set to decide the case based on the law—and the political chips will fall where they may.

During the argument, Justice Sotomayor asked:

Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

The only stench comes from Justices who base their decisions on "public perception."

In the essay, I observe that Chief Justice Roberts and Justice Barrett channeled the logic of the Justices they clerked for.