Not so "super-duper"

Senator Mike Dewine: During the confirmation hearing of Chief Justice 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 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 Roe 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 binding 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 tests. The result has been 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 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 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....."