Senator Mike DeWine Statement to the Senate Judiciary Committee
January 10, 2006
During the confirmation hearing of Chief Justice John Roberts, Chairman Specter showed us a chart stating that the Supreme Court had the opportunity to overrule Roe v. Wade in 38 cases. Because of this, the chairman suggested that Roe was not only a super-precedent, but a super-duper precedent.
The chairman has made the same argument at the hearing today. In fact, he brought the chart out again today.
Now, Judge, just to show you that not all members of this panel are like-minded, I want to tell you that I disagree. To me, Roe is not super-precedent. I believe Roe is precedent, but I don’t believe it’s super-duper precedent, nor super-precedent.
First, although the court has applied Roe in 38 cases, it has not directly taken up the issue of whether to overrule in every one of those cases.
In fact, out of those 38 cases, I’ve only found four in which the court directly addressed the status of Roe as being precedent.
In Webster, the court asked whether Roe should be reaffirmed but ultimately avoided the issue.
In three cases, City of Akron, Thornburgh, and Casey, the court did reaffirm Roe. But the last of these, Casey, did so in a way that hardly left Roe on firm footing. In fact, Casey altered Roe by eliminating the strict scrutiny standard of review and replacing it with a lesser, undue burden test. The result has been that many restrictions on abortion have been upheld.
Second, just because Roe has been applied and reaffirmed does not make it a special form of precedent. Many other cases have been applied for decades before eventually being overruled.
For example, Plessy v. Ferguson, the case establishing the principle of separate but equal was upheld for 60 years before it was overruled, and is certainly discredited today; Lochner v. New York, a case that greatly limited the power of the states to protect children and workers, was consistently applied for more than 30 years before it was overruled. And Swift v. Tyson, the case establishing the doctrine of federal court common law, was a bedrock principle of American law repeatedly applied and upheld for nearly 100 years before it too was struck down.
Thus the mere fact that Roe has been upheld for more than 30 years does not mean that it’s entitled to special deference.
Third, from the start, Roe has been criticized by lawyers, scholars, and judges, whether Democrats or Republicans. And to date, it does remain controversial.
Fourth, much has happened over the last 30 years to undermine the soundness of Roe.
Senator Brownback has mentioned how the facts of Roe have changed. We not know that the plaintiff in Roe based her case on false statements and that she wants the case overturned.
We even know something about the internal deliberations of the justices who decided Roe. In an internal Supreme Court memo, Justice Harry Blackmun, the author of Roe, acknowledged that the trimester framework established in his opinion was, and I quote, “arbitrary.”
And Justice Lewis Powell said that he could not find a right to an abortion within the Constitution and decided instead to rely on his gut. .
Finally, whatever the term super-precedent means, I do not think that it describes Roe. In an article by William Landis and Richard Posner, the super-precedent was defined this way: “It is a precedent that is so effective in defining the requirements of the law that it prevents legal decisions arising in the first place or, if they do arise, it induces them to be settled without litigation.”
In other words, super-precedent is precedent that is so firmly entrenched in our legal system that people simply don’t question it.
Marbury v. Madison, the case establishing the power of judicial review, is super-precedent. It’s so well-settled that litigants do not challenge it in court. In fact, it is one of the fundamental assumptions upon which our constitutional system is built.
Roe is hardly Marbury. Is Roe Supreme Court precedent? Certainly. But in my view, it is not super-precedent – it is not super-duper precedent. It is precedent. Nothing more.
