The Burger Course

THE JUSTICE DEPARTMENT is now petitioning the Supreme Court to reverse its "historic" 1973 ruling in Roe v. Wade, which made easy abortion the law of the land. It's unlikely that the Court will do this, but the move may still serve the useful purpose of high-lighting judicial capriciousness, of which Roe is the most tragic example.

If the abortion issue weren't so red hot, the legal oddity of Roe would command more attention. The Court struck down not only conservative and restrictive abortion laws but liberal, permissive ones as well. It declared, in effect, that none of the fifty state legislatures had ever understood the Constitution properly in the area of abortion--a far more sweeping attack on state legislation than the Court's 1954 desegregation ruling in Brown v. Board of Education, which nullified the laws of only a minority of the states.

Furthermore, since no constitutional qualms about abortion laws were expressed even by their opponents at the time of their passage, the Court in effect held in Roe not only that the legislative majorities had always been wrong, but also that no minority had ever been right. What really happened, of course, was that abortion-on-demand had been added to the liberal agenda at about the time of Roe, and the Court was up to its old trick of pretending to "discover" in the Constitution a part of that agenda that was unlikely to get a legislative majority. Judicial review, ironically, though intended by the Framers as a check on "faction" (special interests, as we would say) has itself become the factional instrument of liberalism. Far from representing the deliberate sense of a long-term consensus as expressed in the Constitution against the claims of a short-term political majority, the Court has come to represent the interest of a current minority against both majority and tradition. The diverse laws struck down by Roe at least bespoke a longstanding consensus against abortion-on-demand.

The Court has pulled this act so many times over the past generation that any succeeding Court faces an embarrassing legacy of bogus constitutional law not only on abortion but also on such issues as school prayer, racial integration, legislative districting, capital punishment, pornography, and defendants' rights, to name a few. Direct reversal of a previous body of rulings would seriously undermine the prestige of the Court that did the reversing, just as a current pope's reversal of his predecessor's teaching would injure the authority of the papacy, including his own.

The burger Court is well aware of this. Despite Roe, it has been generally uneasy with the Warren legacy, but has seldom contradicted it in any principled way, preferring instead to cut back marginally on some big Warren-era rulings. This has deminished the practical force of those rulings (e.g., on arrest procedures), but it has also made for tangled precedents and ever more obscure constitutional principles. And it leaves the Court as powerful and unpredictable as ever.

In the term just ended, the Court upheld earlier rulings on school prayer and aid to private schools that had taken separation of chuch and state to the fanatical lengths favored by the America Civil Liberties Union. (The ACLU, in fact, applauded the Court's line.) Just as the Warren Court sacrificed the Constitution to liberal ideology, the Burger Court sacrifices it to the false appearance of continuity. But this Court's continuity is with Warren-era innovations, not with constitutional tradition, which is why it can be expected to reject the Administration's request that it admit the error of its ways in Roe.

COPYRIGHT 1985 National Review, Inc.
COPYRIGHT 2008 Gale, Cengage Learning