“The greatest tyrannies are always perpetuated in the name of the noblest causes.”
— THOMAS PAINE
May 2022

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Holmes: Great Cases Like Hard Cases Make Bad Law

Roe v. Wade was probably a mistake. That case divided America like few cases in our history have. Brown v. Board of Education overruled Plessy v. Ferguson and held that separate was inherently unequal. It followed that segregation in public education violated the equal protection promise of the 14th Amendment. Brown caused havoc for a while, but the Court correctly judged the country to be ready for more equality and decided Brown 9-0. Nearly 70 years later, no public official or even a Fox News talking head would dare to advocate a return to segregation in public facilities or overruling Brown. Racism still exists, but official segregation is gone.

What has made Roe even more toxic is the absence of a correct answer. On the so-called pro-life side, the truth simply is that abortion takes the life of the fetus, it is capital punishment with no procedural protections. No indictment, no trial, no judge or jury. Much has been said about viability and weighing competing considerations. But it’s still murder. On the other side, so-called pro-choice, passions run equally high. Women want and deserve freedom to make the very personal and life-changing decision about their bodies and their babies. How dare outsiders intrude on so basic a choice? One side may think the other consists of promiscuous and cavalier murderers. The other thinks pro-lifers are meddlesome and hypocritical intruders. Neither side is all right, nor is either all wrong.

A decision like that is best left unmade. The abortion debate would continue state by state, with a crazy quilt result. It would be unfair and tragic for some. But over time, political decisions would be made and change would take hold. Gay rights evolved this way. When Roe was decided, nine people with life tenure, black robes and offices in a grand building got ahead of their country. Roe was decided on January 22, 1973, and the Heritage Foundation was created less than one month later, on February 16. Passions have exploded ever since, partisan politics have become steadily more divided, and the credibility of the Supreme Court and the federal judiciary has diminished. This last change is the most dangerous and even now, with Roe on the edge of overruling, no healing has taken place.

When Judge Jackson endured her confirmation hearing, she was peppered with questions about Roe. She correctly declined to take the litmus test. But in the process a far more important question was not asked, and this week we wish it had been: when should a case be overruled, and when should stare decisis be observed? The public has instead been encouraged to believe it’s all about votes. Win elections, appoint a majority who sees it your way, and that’s how it goes. But if that’s all there is, why have a third branch of government at all? Why not decide every important issue by referendum? In a regime like that, the majority would face no restraint, minority groups and views would be unrepresented and norms would constantly be up for redefinition. The founders believed a dispassionate guide to the middle of the road was a better idea. Unrestrained power by executive or legislative branches would produce unstable government.

If overruling is a legitimate if rare thing for judges to do, when should it be undertaken? If six members of the Supreme Court think Roe was wrongly decided, is it nevertheless owed no fealty? Is there no such thing as law, only power? Justice Kavanaugh, in his confirmation, said Roe was settled law, but now it appears that he lied. It’s unclear what the Court is actually going to do, and say. Hopefully it will be more than “we win, you lose because we say so.” Much is at stake. If Roe was mistaken for the practical reason of getting the Court too far ahead of the country, would overruling it compound the error by marching too far behind? Opinion polling shows the people to be solidly in favor of a woman’s right to choose. What would overruling by a predominantly Catholic Court do to trust in government, the law, and the lives of millions of women and children?

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