By Bret Stephens
© 2022 The New York Times
Dear Chief Justice Roberts and Justices Barrett, Gorsuch, Kavanaugh and Thomas:
As you’ll no doubt agree, Roe v. Wade was an ill-judged decision when it was handed down on Jan. 22, 1973.
It stood on the legal principle of a right to privacy found, at the time, mainly in the penumbras of the Constitution. It arrogated to the least democratic branch of government the power to settle a question that would have been better decided by Congress or state legislatures. It set off a culture war that polarized the country, radicalized its edges and made compromise more difficult. It helped turn confirmation hearings for the Supreme Court into the unholy death matches they are now. It diminished the standing of the court by turning it into an ever-more political branch of government.
But a half-century is a long time. America is a different place, with most of its population born after Roe was decided. And a decision to overturn Roe — which the court seems poised to do, according to the leak of a draft of a majority opinion from Justice Samuel Alito — would do more to replicate Roe’s damage than to reverse it.
It would be a radical, not conservative, choice.
What is conservative? It is, above all, the conviction that abrupt and profound changes to established laws and common expectations are utterly destructive to respect for the law and the institutions established to uphold it — especially when those changes are instigated from above, with neither democratic consent nor broad consensus.
This is partly a matter of stare decisis, but not just that. As conservatives, you are philosophically bound to give considerable weight to judicial precedents, particularly when they have been ratified and refined — as Roe was by the 1992 Planned Parenthood v. Casey decision — over a long period. The fact that Casey somewhat altered the original scheme of Roe, a point Justice Alito makes much of in his draft opinion, doesn’t change the fact that the court broadly upheld the right to an abortion. “Casey is precedent on precedent,” as Justice Kavanaugh aptly put it in his confirmation hearing.
It’s also a matter of originalism. “To avoid an arbitrary discretion in the courts,” Alexander Hamilton wrote in Federalist No. 78, “it is indispensable that they” — the judges — “should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Hamilton understood then what many of today’s originalists ignore, which is that the core purpose of the courts isn’t to engage in (unavoidably selective) textual exegetics to arrive at preferred conclusions. It’s to avoid an arbitrary discretion — to resist the temptation to seek to reshape the entire moral landscape of a vast society based on the preferences of two or three people at a single moment.
Just what does the court suppose will happen if it votes to overturn Roe? Ending legalized abortions nationwide would not happen, so pro-lifers would have little to cheer in terms of the total number of unterminated pregnancies, which has declined steadily, for a host of reasons, with Roe and Casey still the law of the land.
But the pro-lifers would soon rediscover the meaning of another conservative truism: Beware of unintended consequences. Those include the return of the old, often unsafe, illegal abortion (or abortions in Mexico), the entrenchment of pro-choice majorities in blue states and the likely consolidation of pro-choice majorities in many purple states, driven by voters newly anxious over their reproductive rights. Americans are almost evenly divided on their personal views of abortion, according to years of Gallup polling, but only 19 percent think abortion should be illegal under all circumstances.
And what will the effect be on the court itself? Here, again, you may be tempted to think that overturning Roe is an act of judicial modesty that puts abortion disputes in the hands of legislatures. Maybe — after 30 years of division and mayhem.
Yet the decision will also discredit the court as a steward of whatever is left of American steadiness and sanity, and as a bulwark against our fast-depleting respect for institutions and tradition. The fact that the draft of Justice Alito’s decision was leaked — which Chief Justice Roberts rightly described as an “egregious breach” of trust — is a foretaste of the kind of guerrilla warfare the court should expect going forward. And not just on abortion: A court that betrays the trust of Americans on an issue that affects so many, so personally, will lose their trust on every other issue as well.
The word “conservative” encompasses many ideas and habits, none more important than prudence. Justices: Be prudent.
Bret Stephens is a columnist for The New York Times.