The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One oft-heard criticism of the leaked Supreme Court draft opinion reversing Roe v. Wade is that it would be the first time the Court reversed a precedent protecting individual rights, as opposed to one that limits them. For example, law professors Sonia Suter and Naomi Cahn write that "this decision would mark the first time the Court overturned precedent to eliminate, as opposed to recognize a new, right." Georgetown professor David Cole, who is also the legal director of the ACLU, makes a similar, though somewhat more nuanced argument, contending that the Court has "extended fundamental rights… in virtually all its decisions overturning constitutional precedents," whereas a reversal of Roe would be almost unprecedented in abolishing such a right.
In reality, the Supreme Court has gutted rights-protective precedents on multiple occasions – including some of its most prominent rulings. That history doesn't necessarily justify overruling Roe v. Wade. It may even counsel against it. But it is worth considering, nonetheless.
Perhaps the best-known example of the Court reversing precedents that protected individual rights is the abolition of protection for economic liberties in West Coast Hotel v. Parrish (1937) and other subsequent rulings. This wasn't just a matter reversing the Court's much-reviled decision in Lochner v. New York (1905). The Court also gutted numerous other decisions protecting economic liberties under the Due Process Clause of the Fourteenth Amendment, many of which long predated Lochner. Indeed, as co-blogger David Bernstein documents in his excellent book about Lochner, the latter wasn't even considered a significant decision by most commentators in 1905, because it was in line with extensive earlier precedent.
The Court's abolition of nearly all judicial protection for economic liberties under the Fourteenth Amendment ended up negating many more precedents than a reversal of Roe would. And the rights involved affected a wide range of relationships throughout the economy. A reversal of Roe might well have less sweeping consequences.
Eventually, in 1955, the Court decided that economic regulations were subject only to the most minimal "rational basis" scrutiny. That was a huge change from judicial approaches to economic rights from the late 19th century through the 1930s. For those keeping score, "rational basis" review is exactly the approach Justice Alito advocates for abortion jurisprudence in his draft opinion.
David Cole notes this history. But he contends it wasn't really a reversal of individual rights because, even though "Parrish took away some rights of business owners,…. its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations." Alito could easily use the same reasoning to justify reversing Roe: although it would take away "some rights" of pregnant women, the "real effect" of doing so is to protect millions of unborn children from being killed by the abortion industry. The same goes for Plessy v. Ferguson, the notorious 1896 ruling upholding segregation laws imposed on railroads (which Cole compares to a reversal of Roe): it, too, took away "some rights of business owners." But the "real effect," its defenders could have argued, was to protect millions of white southerners who preferred segregated travel facilities.
Pretty much any decision constraining individual rights can be seen as beneficial if viewed from the standpoint of supporters of the regulations it upholds, and those they claim would benefit from those laws.
In reality, the reversal of economic liberties precedents constrained far more than just "powerful corporations." It also restricted small business owners (like the immigrant owner of the Lochner bakery) and workers who preferred to work longer hours in exchange for more pay to working shorter hours for less; ditto for those who were forced into unemployment by the minimum wage laws the new precedents allowed. West Coast Hotel actual upheld a minimum wage law that applied to women only, thereby disadvantaging them in competition with male workers at a time of sky-high unemployment during the Great Depression.
I don't claim any of this, by itself, proves that the economic liberties precedents gutted by the Court were necessarily right. They had their flaws. But the issue was far from just a simple matter of helping workers at the expense of a few "business owners" and "powerful corporations."
Almost as famous as the Court's reversal of economic liberties' precedents was its gutting of the Contracts Clause in Home Building & Loan Association v. Blaisdell (1934), a case covered in most introductory constitutional law classes. The Court upheld a Minnesota law imposing a moratorium on home mortgage payments during the Great Depression, and thereby largely negated the Constitution's ban on state laws "impairing the Obligation of Contracts." In the process, the Court effectively reversed numerous precedents dating back to the early 19th century. Justice George Sutherland covered many of them in detail in his forceful dissent. Here, too, the Court undermined more and longer-established precedents than a reversal of Roe would. In the aftermath of Blaisdell, the Court gives Contracts Clause rights only slightly greater protection than that accorded economic liberties after the reversal of pre-1937 Due Process Clause precedents in that field.
Less well-known than West Coast Hotel and Blaisdell, is Berman v. Parker, the Court's 1954 demolition of Fifth Amendment "public use" restrictions on the range of purposes for which the government can condemn private property. Berman wiped out the previous understanding that the Public Use Clause imposed at least some some substantial constraint on the use of eminent domain to take property for transfer to private parties. Instead, the Court ruled that a "public use" can be pretty much anything the government says it is.
The consequences of Berman were catastrophic, including opening the door to the forcible displacement of hundreds of thousands of mostly poor and black urban residents through "urban renewal" and "blight" condemnations. Berman also became the principal precedent justifying the Court's later, much-hated, decision in Kelo v. City of New London, upholding takings for private "economic development."
The extent to which Berman ran contrary to previous precedent was ignored by the Court, and is often overlooked even today. The history is too complicated to readily summarize here. But, for those interested, I cover it in some detail in Chapter 2 of my book about Kelo, The Grasping Hand. While not all the evidence covered in my book was known in 1954, the radical nature of a decision upholding the takings was obvious enough that, the trial judge in the case, District Judge E. Barrett Prettyman ruled against the condemnation and emphasized that the "extension… of the concept of eminent domain" demanded by the condemning authority was "dangerous to basic principles of our system of government."
These three examples are far from the only ones where the Supreme Court has undermined or significantly narrowed rights-protecting precedent. Depending on how stringently we define the concept of reversal, there could be many other similar cases. But these are three major instances where the Court massively undermined previous precedent protecting individual rights, to the point where the right no longer enjoyed more than very minimal judicial protection in the vast majority of situations. That isn't much different from what Alito proposes to do to abortion rights.
It's certainly possible to argue that a decision overruling Roe would be worse than West Coast Hotel, Blaisdell, or Berman. Perhaps abortion is a more important, more valuable right than those at issue in the the other cases. Perhaps Roe was a better-reasoned decision than the precedents undermined in the other instances.
But these three historical episodes makes it impossible to claim that a reversal of Roe would be wrong because the Court has never previously overruled precedent protecting individual rights. In reality, such reversals figure prominently in our legal history.
That does not necessarily prove these examples actually support a reversal of Roe. If you believe, as I do, that West Coast Hotel, Blaisdell, and Berman were serious errors that made things worse than they were under prior jurisprudence, you might conclude that history indicates the Court should not reverse rights-protecting precedent. At the very least, perhaps there should be a strong presumption against it.
In the unlikely event that the Court decides not to reverse Roe based on such a presumption, I would be happy to see it! But, of course, my view of these prior reversals is very much at odds with conventional wisdom, especially when it comes to West Coast Hotel and Blaisdell. Most jurists and legal scholars – especially those on the left – applaud these rulings.
Many progressives would also be happy to see a reversal of some other rights-protecting precedents. Citizens United v. FEC (2010), which struck down campaign finance regulations restricting corporate expenditures on election-related speech, is an obvious example.
If you support the Supreme Court's rulings in West Coast Hotel, Blaisdell, and Berman (or even just some of these), and hope it will someday reverse Citizens United, that's an entirely understandable position. But you cannot then simultaneously decry the potential overruling of Roe on the ground that it's inherently improper to reverse precedents in ways that contract individual rights.