The Supreme Court Must Have the Courage to End Roe‘s Corruptions of Our Body Politic
This article was written by Brad Lingo and published in the National Review.
J. R. R. Tolkien’s The Lord of the Rings saga tells of a ring whose power seduces all who come to possess it. Those who hold the One Ring sense the evil that lives within it. They know that the ring corrupts the souls of those who hold it, but they struggle to surrender it. Tolkien’s books tell of centuries of suffering caused by the One Ring and the difficulty of relinquishing and destroying it.
As explained in a recent law-review article, a similar story is unfolding right now at the U.S. Supreme Court. Our nation waits for the Supreme Court to decide Dobbs v. Jackson Women’s Health Organization. The justices have a chance to remedy a grave injustice and overrule Roe v. Wade. Will they be seduced by the power granted to them by cases like Roe and Planned Parenthood v. Casey? Many fear the consequences of overruling Roe. But the consequences of failing to act at this critical moment may be much worse.
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Time and time again, proximity to Roe and Casey has transformed our leaders and institutions into Gollum-like, grotesque creatures that our Founders would not recognize. It’s turned the Supreme Court into a political-and-policy-making body and undermined its legitimacy. Our judicial appointment process has devolved into a partisan circus, with abortion precedents in the center ring. Not long ago, a prominent U.S. senator stood on the steps of the Supreme Court and threatened that the justices would “pay the price” and “not know what hit” them after the justices jeopardized his Precious by failing to adopt his preferred view of third-party standing in an abortion case. Now, there’s an unprecedented and shameful leak of a draft opinion in Dobbs. And with that leak, we should expect a loss of trust and collegiality at the Court.
Few issues divide Americans like abortion. These divisions will endure long after Dobbs. The Court cannot craft a social and health policy that will resolve these differences. Nor can it bring peace through half-measures. But national healing can begin by restoring our constitutional traditions and returning this long-running debate to the people.
That is, we must return to the solution provided by our Constitution: a confident federalism that allows for differences and fosters vigorous debate. The Court should seize this opportunity to return to the people and to the Court their traditional roles in our constitutional republic.
The Supreme Court granted certiorari in Dobbs on one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” This question goes to the heart of our abortion precedents. After all, Roe’s “central rule” has long been understood to be that a state cannot ban pre-viability abortions. That holding abandoned our constitutional structure to achieve a policy goal.
To save Roe, Casey grounded the abortion right in “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” rather than constitutional text or structure. As Harvard’s Stephen Sachs has explained, “A Court that rests decisions of extraordinary social importance on nebulous notions like ‘the right to define one’s own concept of existence . . . and the mystery of human life’’’ promotes a public perception of the Court as a partisan actor unconstrained by the Constitution it purports to interpret. It transforms the Court into “a superweapon” that “is too powerful . . . to leave lying around in a democracy; sooner or later, someone is bound to pick it up.
During oral arguments in Dobbs, Justice Sotomayor wondered how the Court would “survive the stench” created by overruling Roe and Casey. The news of the recent leak has caused those on the left to continue to beat that drum. But the stench comes not from overruling lawless precedents, but from preserving them. The Supreme Court cannot serve the rule of law by preserving precedents — like Roe and Casey — that subvert the rule of law and erode democratic discourse. The only way to eliminate the stench is to remove the source. As post-Casey experience teaches, spraying Febreze and hoping for the best will not fix the problem.
Some of Casey’s authors thought the Court could maintain its legitimacy by affirming a decision they found both legally and morally wrong. But affirming a wrong decision simply to maintain the justices’ own institutional authority is itself deeply wrong and wrongheaded.
Dobbs provides the Supreme Court a second chance to do what it wouldn’t do in Casey. The Court must voluntarily relinquish the power it seized in Roe and return the issue of abortion to the process of democratic discussion and debate that produces law. Doing so won’t resolve disagreements regarding abortion. But it might be might a first step toward healing a long-festering wound to our life together as a nation and to our judicial institutions.
At the end of The Lord of the Rings, Frodo makes a long and difficult journey to Mount Doom, where he plans to destroy the ring. At the last moment, he is overcome by the ring’s power and loses his resolve. Gollum tries to seize the ring for himself. As they fight over it, the ring falls into the fires of Mount Doom and is destroyed.
It’s not clear that any of the five Justices poised to overrule Roe are losing their nerve, and the recent leak will likely strengthen their resolve to do what they know is right. We don’t know who leaked the draft opinion. But whoever did it is just the latest in a long line of people and institutions who have been corrupted by Roe and Casey.