The Washington PostDemocracy Dies in Darkness

Opinion Did the conservative legal movement succeed? That all depends on whether the Supreme Court overrules Roe v. Wade.

The Supreme Court building in Washington on Nov. 21. (Stefani Reynolds for The Washington Post)

Edwin Meese III served as U.S. attorney general from 1985 to 1988.

On Wednesday, the Supreme Court will hear a case that asks the justices to return the issue of abortion where it belongs, to the people. But it is not simply the future of abortion that is at stake in Dobbs v. Jackson Women’s Health. The court’s answer will also determine whether the dominant conservative legal project of the past 40 years, to restore neutral principles to constitutional interpretation, has been a success.

This effort has achieved a great deal. When I became attorney general in 1985, anchoring constitutional interpretation in the document’s text and our history was unfashionable. Not anymore.

The success of this enterprise was perhaps best summarized by Justice Elena Kagan, who made the following comments: “We’re all originalists” now and “we’re all textualists now.” As her comments suggest, the past four decades of legal thought, training and interpretation have transformed how judges approach their craft.

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.

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And the 1992 case that preserved Roe’s “essential holding,” Planned Parenthood of Southeastern Pennsylvania v. Casey, showed that Roe and subsequent abortion case law are not governed by the ordinary principles of stare decisis, the notion that the court should not abandon its precedents without strong reason.

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.

Because the errors of Roe and Casey are not self-contained, failing to reverse them in Dobbs would threaten to destroy the 40-year effort to restrain the court with the Founders’ interpretive principles.

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.

We have already seen that judicial half-measures — such as Casey’s preserving only Roe’s “essential holding” result only in more arbitrary decision-making. Under these circumstances, a failure to reverse a body of law so blatantly at odds with the effort to restore neutral principles to constitutional interpretation would cast doubt on the idea that there are neutral principles the court can apply.

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.

This would be a tragic error. Dissenting in the same-sex marriage case, Obergefell v. Hodges, Justice Samuel A. Alito Jr., presciently warned about the consequences of imagining that the Constitution contains a right simply because some consider it desirable.

“A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means,” he wrote, joined by Justices Scalia and Clarence Thomas.

Reversing Roe and Casey will not ban abortion. States and the people will be free, as they are in many other areas, to decide such matters of personal morality. 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.

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