Thursday, November 03, 2005
On this day:

Robert Bork on Alito and Roe v. Wade

Writing for National Review Online today, Robert Bork made the case for why conservatives should support the nomination of Samuel Alito to the Supreme Court. While admitting that he does not know whether Alito would vote to overturn Roe v. Wade, Bork argues convincingly that he should:
...overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence. Chief Justice Roberts and Justice Alito will hear a lot about stability in the law, the virtues of stare decisis, and the reliance many women have placed on that decision. The obtrusive fact is that constitutional law has never been stable. Precedent counts for less in constitutional law than elsewhere for the very good reason that the legislature can correct the Court’s mistake in interpreting a statute, but the Court is final when it invokes the Constitution and only the Court can correct its own mistakes. For that reason, many justices have made the point that what controls is the Constitution itself, not what the Court has said about it in the past. Cases like Roe, that some will claim must not be disturbed, were themselves repudiations of prior understandings of the Constitution.

If judgments about the prudence of overruling are invoked, the justices should take note of the fact that Roe lies at the center of the bitter polarization of much of American society. In countries where the issue is decided democratically, no such intense animus exists. Compromises are worked out and each side knows that it is free to continue the public debate in hope of doing better next time. That was, and would be again, the case in America if the subject of abortion were returned to state legislatures and electorates. Overruling Roe would not, as some Democrats will claim, make abortion illegal, but merely the subject of democratic regulation. We have paid a high price for a ruling that rests upon nothing in the Constitution and was arrived at in an opinion of just over 51 pages that contains not a line of legal reasoning.