Over the last week, you’ve no doubt seen meltdown after meltdown from the left over Alabama’s new strict abortion ban, which prompted one state legislature to push eugenics in support of the law and left activists like Alyssa Milano advocating for women to go on a “sex strike.”
But while these freak-outs were crazy, perhaps the most insane meltdown came over a 5-4 Supreme Court decision that had nothing to do with abortion.
The case in question is Franchise Tax Board of California v. Hyatt, an exceptionally dry case dealing with the issue of “whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State.” The 5-4 decision overruled a 1979 ruling that said that states lost sovereign immunity in the courts of other states; the Supreme Court ruled in this most recent case that states retain their sovereign immunity.
If that sounds like boring legalese, that’s because it is. Although the issue of sovereign immunity is critical, a case like this one would only interest the legal nerds out there.
But that wasn’t true this time around — the Supreme Court overruled precedent with this decision, and the left had a full-blown meltdown. Leah Litman, a law professor at U.C. Irvine, even wrote a New York Times editorial titled, “Supreme Court Liberals Raise Alarm Bells About Roe v. Wade: Conservatives may be laying the foundation for the reversal of the landmark abortion decision.”
Litman and others echoed Justice Stephen Breyer’s dissenting opinion, in which he cited the abortion case Planned Parenthood v. Casey to discuss the issue of stare decisis, the legal doctrine under which courts uphold prior cases as precedent. Breyer ended his opinion by writing that he was appalled the court was overturning precedent in the Hyatt case: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
Breyer and others are suggesting that overturning cases like Casey and Roe v. Wade amounts to an unjust attack on the foundational principle of stare decisis. Essentially, they argue that Roe–Casey is precedent, and the Supreme Court has no reasonable basis for overturning it.
They’re also implying that overturning cases like Hyatt harm the Supreme Court’s place as an unbiased institution in a bid to warn Chief Justice John Roberts that he shouldn’t allow the court’s conservatives to touch Roe.
But Roe-Casey is far from a super precedent. The reality is that Roe and Casey are lousy law.
And you don’t have to trust me on this. Listen to liberals like Harvard Law professor Laurence Tribe, who currently spends his time hawking crazy #Resistance theories on Twitter. He wrote after Roe was decided in 1973: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Tribe agrees with the end goal of Roe — he wants abortion legal in nearly any case — but he can’t identify a single way Roe is good law.
This brings us to the reason the left is relying solely on the argument that “Roe is precedent.” There is no legal argument to justify Roe or Casey or the right of abortion in the text, history, or tradition of the Constitution. I simply can’t emphasize this enough.
Roe–Casey and the entire abortion line of cases are an aberration of incredibly lousy judicial reasoning that was invented whole cloth by a liberal court. And now, everyone on the left is scrambling to find any reason for this bad case law to exist.
The left has virtually adopted the logic of the Delta Tau Chi fraternity house in the movie Animal House. When the school dean is trying to shut down the fraternity, the head of the house responds by saying, “But sir, Delta Tau Chi has a long tradition of existence both to its members and the community at large!”
That’s all the left has to support Roe–Casey: they invented this so-called right out of thin air and now proclaim, “But sir, the Roe–Casey abortion right has a long history of existence!”
But existence alone isn’t enough to justify the abortion right. In 1997, the Supreme Court ruled in the case Washington v. Glucksberg that new rights discovered in the Constitution had to be “objectively, deeply rooted in this Nation’s history and tradition.”
The reason we keep coming back to the abortion issue is that there’s nothing about abortion that is objectively, deeply rooted, in this nation’s history or traditions.
The Roe–Casey abortion decision was forced on a nation that didn’t want or need the Supreme Court wading into the issue. But because the court did this, that power grab continues to rip apart the cultural and moral fabric of our country in profound ways.
Overruling Roe–Casey is a step toward reining in judicial power and reasserting the control of the people on this issue.