I. Introduction

In June Medical Services L.L.C. v. Russo, Chief Justice Roberts looked to the writings of Edmund Burke to reason that the Supreme Court should retain an abortion precedent. He argued that judges should adopt “a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday.”[1] But if Edmund Burke were alive today and participating in the opinion writing now at the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organization, he would vote to overrule Roe v. Wade. Burke is famous for recognizing the value of long-established traditions, but he was no apologist for institutional error.

On December 1, 2021, the Supreme Court heard oral argument in Dobbs—a case that, for the first time in thirty years—asks the Supreme Court to overrule Roe.[2] Both written and oral arguments made one thing apparent: practically no one believes that Roe was rightly decided. Instead, the parties defending that case rely almost entirely on stare decisis, the idea that it is better that a case be decided, than that it be decided correctly.

Conventional stare decisis factors strongly favor overruling Roe. That decision and its progeny are not just wrong but egregiously so. The reasoning in Roe has been lampooned by those on the left as well as those on the right. Pro-abortion law professor John Hart Ely, for example, argued that “never before” had the constitutional basis for a decision been “so obviously lacking.”[3] Even Justice Ginsburg criticized the decision as “heavy-handed” and “difficult to justify.”[4]

Roe and Casey have caused negative jurisprudential and real-world consequences. They placed abortion in the hands of an unelected judiciary thwarting the democratic process. The Supreme Court’s abortion jurisprudence has proven hopelessly unworkable as the lower courts today have no idea what Casey’s undue burden standard even means.

Legal and factual developments have further eroded Roe. Penumbras and emanations are no longer sufficient to create a constitutional right. Safe-haven adoption laws are ubiquitous, and since 2013, contraception has been widely available with both a median cost and failure rate approaching zero.[5] We also know more about unborn life. By the time Mississippi’s law applies at fifteen weeks, a baby can move, stretch, yawn, and hiccup. Emerging scientific evidence suggests she may even be able to feel pain.[6]

Stare decisis is no barrier to a decision as poorly reasoned, unworkable, and harmful as Roe. But what about the idea that Burkean humility is an additional reason to leave prior precedent in place?

Burke’s writings featured prominently in Chief Justice Roberts’s concurrence in June Medical. In that case, the Chief Justice voted to strike down Louisiana’s ambulatory surgical requirements, even though he had voted to uphold nearly identical requirements just four years prior in Whole Woman’s Health v. Hellerstedt.[7] The Chief still believed Whole Woman’s Health was wrongly decided but believed himself bound by precedent—by the bank and capital of the ages. The Chief argued that judges should adopt “a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them.”[8] Quoting Burke, he noted that since the “private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.”[9]

This essay will argue that respect for tradition does not weigh in favor of keeping Roe. A deeper dive into Edmund Burke’s writing shows that Burke himself likely would not stay the course in Roe.

First, in the writings featured by the Chief Justice, Burke was addressing a much different situation. He was speaking as a statesman about statecraft, not about judicial doctrine. And stare decisis factors that developed in the common-law era where prior precedent was the best evidence of what the law is, do not necessarily transfer to our system of positive, written law. Finally, Roe is in no way a product of the history and tradition that Burke praised—it is a radical departure from the “bank and capital” of the nations, including this nation.

Second, when in separate writings Burke addressed judicial precedent, he showed support for reexamining precedent. He laid out a five-factor test he believed must be satisfied before a judicial decision was considered precedential. Roe fails at least three of those five factors. Abortion law is not consistent with the general tenor of legal principles. It is contradictory and mutually destructive. And Roe was not decided in good and constitutional times but is a result of purposivism, the prevailing legal theory of the day that allowed judges to make, rather than just interpret, the law.

Burke’s reliance on tradition and history was grounded in twin humilities, a humility that recognized the fallibility of both human and institutional reasoning. Burke would overrule Roe.

II. Edmund Burke on History and Tradition

Edmund Burke is widely regarded as the father of modern conservatism and famous for recognizing the inherent value in long-established traditions.[10] Burke was conservative in the sense that he recognized the value of history. He respected the accumulated wisdom of past generations. And while he was a staunch advocate for positive societal change—he was for American independence and adamantly opposed to the slave trade[11]—he was not a deconstructionist. Rather, Burke advocated for positive change within and through existing society and constitutional structures. Burke was for improving society, not dismantling it. Thus, his twin standards for a statesman were “[a] disposition to preserve and an ability to improve.”[12]

For Burke, liberty was safeguarded through, among other things, respect for long-established traditions.[13] Rights came with responsibilities in Burke’s view, and he was famously wary of revolutionary tactics and their drastic break from history. Thus, he took a dim view of the French Revolution and predicted its culmination in the Reign of Terror wherein nuns and clergy were executed and from which Napoleon ultimately emerged as a military dictator.[14]

Burke also advocated for humility. He argued that the “latent wisdom” of the ages created a kind of backdrop (or prejudice, as he called it) that exceeded one’s “own private stock of reason.”[15] Burke was conscious of the fact that history can provide a guide to a legislator whose one stock of reason was small in comparison to history. And like the Founders after him, Burke was skeptical that mortal men could handle large amounts of power well. Because the capacity of an individual is limited and likely to be influenced by self-interest, Burke argued that legislators should draw from the “general bank and capital of nations and of ages.”[16]

III. Burkean Humility Poses No Obstacle to Overturning Roe

There are several reasons why neither Burkean humility nor Burkean respect for history and tradition require adherence to Roe. First, Burke’s writings can be distinguished for three reasons: 1) permissive abortion laws like those mandated by Roe are not part of the bank and capital of nations; 2) Burke was writing in the common law era, and stare decisis does not transfer wholesale to the modern American judicial inquiry; and 3) Burke was writing as a statesman about statecraft. Second, Roe flunks at least three components of Burke’s five-part test for determining whether a judicial decision is precedential.

A. Roe is Not Part of the “Bank and Capital of Nations”

First, Burke appealed to the “bank and capital of nations and of ages.” The abortion regime mandated by Roe is not part of “the bank and capital of nations,” but instead one of the most permissive in the world. The United States is an extreme outlier in abortion law. As the Chief Justice alluded to at oral argument, we are only one of six nations, including China and North Korea, that allow abortion-on-demand up until the moment of birth.[17] We are one of only seven countries that allow abortions all the way up to viability, defined as around twenty-two weeks and the point in time when a baby can survive outside her mother’s womb.[18] Most countries either do not allow abortions or do so in limited circumstances, like to protect the life and health of the mother. And of the nations that allow elective abortions, 75% limit on-demand abortions after twelve weeks.[19] Even nations with extremely permissive abortion laws like France, Italy, Germany, Spain, and Norway limit abortion to fourteen weeks, except for medical reasons.[20] Indeed, when the Washington Post ranked countries based on their permissiveness toward abortion, the United States came in as fourth-most permissive out of 198 countries, behind only North Korea, Vietnam, and China.[21] Although these “dramatic statistics” may be “surprising” to some,[22] they preclude the conclusion that Roe is part of “the bank and capital of nations or ages.”

Neither can Roe be called part of the “bank and capital” of the United States. That decision dramatically diverged from common law and statutory restrictions on abortion. In fact, abortion was illegal at common law from before the founding through to the mid-twentieth century. As professor Joseph Dellapenna observed, “the common law, in its early centuries, treated abortion as a crime in principle because it involved the killing of an unborn child—a tradition that continued with elaboration, but without interruption, until Roe changed it.”^[23] And a mere five years before Roe, abortion was still illegal by statute in every single U.S. state.^[24] Far from the culmination of the country’s “latent wisdom,” Roe was an abrupt aberration from centuries of English and American law.

B. Burke Discussed Common Law, Not Positive Law

Burke’s views on stare decisis are inapropos because nineteenth century views of common law stare decisis do not transfer wholesale to a system of positive federal law. As Chief Justice Marshall explained in Marbury v. Madison, America has a written Constitution.[25] Similarly, our democracy is based upon a system of written, positive federal law enacted by our elected representatives. As a result, Article III jurists interpret but do not make or discover the law—this sets them apart from the common law judges of yore.

In the late eighteenth or early nineteenth century, English courts “began to speak of a qualified obligation to abide by past decisions.”[26] During that time period, the common law included the established customs, rules, and maxims that had been discerned and articulated by judges.[27] Stare decisis was important because judicial decisions were the “principal and most authoritative evidence” of the existence of a custom from which the common law was derived.[28] In the common-law era, judges were believed to discover the law from preexisting customs,[29] and precedent was judicially constraining. Blackstone urged that precedents should be followed (unless absurd or unjust) because a judge must rule “according to the known laws and customs of the land” and not “according to his private sentiments” or “own private judgment.” [30]

Blackstone was not a stare decisis absolutist. Judges needed not adhere to precedent “most evidently contrary to reason.”[31] Blackstone wrote that when a “former decision is manifestly absurd or unjust” or fails to conform to reason, it is not simply “bad law,” but “not law” at all.[32]

Whereas the common-law courts of England discerned and defined legal rules from custom and tradition, the role of federal courts is different. It is to exercise the “judicial Power,” by faithfully interpreting the Constitution and the laws enacted by the legislative branch.[33] As Justice Scalia put it, “in the federal courts, . . . with a qualification so small it does not bear mentioning, there is no such thing as common law.”[34] “Every issue of law resolved by a federal judge involves interpretation of text—the text of a regulation, or of a statute, or of the Constitution.”[35]

Common law views of stare decisis do not necessarily transfer directly to a positive law regime. The Article III judicial role is one of interpretation, not discovery. Prior decisions are not the best evidence of what the law is, but simply a prior judicial interpretation of the positive law. As Justice Thomas has explained, the judicial oath to uphold the Constitution suggests that judges should correct an erroneous interpretation of that document, whether made by Congress, the Executive, or a prior Court.[36] As a result of the difference between common law and positive law judicial undertakings, Burke’s views do not necessarily shed much light on the role of stare decisis today.

C. Burke Was Speaking as a Statesman

Burke was a philosopher and statesman, not a jurist. And as the Chief Justice recognized in June Medical, the judicial role must be distinguished from “the political and legislative process.”[37] Indeed, in the passages quoted by the Chief Justice, Edmund Burke was availing to the “general bank and capital of nations and of ages” as a statesman.[38] Burke thus argued that a legislator should pursue policies “carefully formed upon analogical precedent, authority, and example.”[39] In the legislative arena, Burke advocated for deference to the accumulated wisdom of history, but he was also willing to pursue change. He advocated against the slave trade and in favor of American independence, for example.[40] In writings dealing more specifically with judicial precedent, Burke made clear he did not believe in absolute stare decisis, either.

IV. Roe Fails Burke’s Five-Part Test for Precedent

Burke believed in precedent but that a decision must have certain qualities for it to be authoritative. Burke was a prosecutor during Warren Hastings’ impeachment trial.[41] When Parliament dissolved, many assumed, based on recent precedent, that his impeachment trial had lapsed.[42] Burke argued that prior precedent should not control. Burke stated that “precedents”—far from binding unassailable authority—are “evidence of legal tradition.”[43] Precedents are “one ground, though only one ground of legal argument.”[44] In fact, Burke argued that five “qualities” must be true of a decision before it was “full of authority in law” and thus precedential:

 

They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.[45]

 

Burke, in other words, was not setting forth a test for when to overrule precedent, but rather for when to follow it. As demonstrated below, Roe fails at least three “qualities” of Burke’s five-part test.[46] That decision is not consistent with general rule of law principles or internally coherent. It was not made in good and constitutional times. When a precedent is at odds with general legal rules, when it is internally inconsistent and contradictory, and when it was made in an era in which the Court was more likely to stray from its interpretive lane, staying the course does not serve the stare decisis values of predictability and respect for the rule of law.

A. Agreeable to the General Tenor of Legal Principles

To start with the standard that Burke believed so crucial it “overruled precedents, and were not to be overruled by them,” Roe and Casey are not agreeable to “the general tenor or legal principles.”[47] Those cases are sideways to constitutional law writ large and have caused “significant negative jurisprudential [and] real-world consequences.”[48] As Justice Thomas explained, the Court’s abortion case law “is now so riddled with special exceptions for special rights that [its] decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.”[49]

1. Roe Disserves Principles of Self-Governance

First, the Supreme Court’s abortion jurisprudence “disserves principles of democratic self-governance.”[50] “The issue of abortion is one of the most contentious and controversial in contemporary American society.”[51] The question of how abortion should be handled “is fraught with judgments of policy and value over which opinions are sharply divided.”[52] And yet, without any support in constitutional text, structure, or history, the Supreme Court took the issue of abortion away from the democratic branches.

This has resulted in fifty years of discord. As Justice Ginsburg put it, “[h]eavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.”[53] By “foreclosing all democratic outlet for” and “banishing the [abortion] issue from” the political forum, the Court has provoked rather than quieted debate on the issue of abortion.[54]

Roe and Casey are inconsistent with the judicial prerogative. Justice O’Connor worried that the constitutionalization of abortion had an “institutionally debilitating effect.”[55] “[T]he Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade,”[56] she wrote. Roe set the Court up as the country’s “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”[57] And as Chief Justice Roberts has noted, the Court cannot possibly “objectively . . . weigh[ ]” or “meaningful[ly] . . . compare” the “imponderable values” involved.[58] These questions belong with “legislators, not judges.”[59] But under the Court’s abortion jurisprudence, courts must substitute their value judgments for the views of the people.

One need only look to judicial confirmation hearings to see the effects of Roe and Casey. The names and faces of senators and nominees change, but the core inquiry remains the same: “Do you believe Roe to be settled law?” The prospect that a nominee might overrule Roe has made vicious party politics, unsubstantiated claims, and character assaults the norm. Because the people have no other “democratic outlet for the deep passions this issue arouses,” Roe has corrupted the confirmation process.[60]

2. Roe is Inconsistent with Substantive Due Process Jurisprudence

Roe and Casey make a hash of the Supreme Court’s substantive due process jurisprudence. Fifty years in, it is hard to find a legal scholar who believes those cases are rightly decided. John Hart Ely, a pro-abortion law professor, famously derided Roe as “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”[61]

The Court no longer invents privacy rights from emanations and penumbras of the Bill of Rights. As Laurence Tribe put it, Roe resorted to privacy rights that “materialized like holograms from the ‘emanations’ and ‘penumbras.’”[62] The Casey plurality put it mildly when it said that Roe was “an extension of those cases” that went before it.[63] That is, the Court’s prior contraception cases (Griswold, Eisenstadt, and Carey) did not involve “the purposeful termination of a potential life.”[64] Indeed, the lawlessness of that decision has sparked a law review cottage industry in how Roe should have been written.[65] After decades of the best legal minds devoting article after article to that topic, Roe is as unmoored today from general substantive due process law as it was in 1973.

Casey was not much of an improvement. It discarded Roe’s reliance on emanations and penumbras to rely instead on the Fourteenth Amendment’s liberty clause.[66] Casey looked to “personal dignity and autonomy” and in an (in)famous phrase posited that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[67]

Casey is inconsistent with substantive due process law writ large. To find a liberty interest, the Supreme Court requires that the right be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [it was] sacrificed.”[68] There must also be a “‘careful description’ of the asserted fundamental liberty interest.”[69] As the Chief Justice has explained, this inquiry is particularly important in the area of substantive due process because the Court is extrapolating from the text of the Constitution: the Court is “most vulnerable and . . . nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”[70]

Indeed, Burke’s respect for tradition and custom can be seen reflected in the Supreme Court’s current substantive due process jurisprudence (and by those lights Roe is egregiously wrong). The requirement that constitutionally protected liberty rights are only those that have endured through generations, those that are “deeply rooted in our nation’s history and traditions,” echoes Burke’s deference to long-established customs and traditions. Indeed, Burke argued that Britain was progressive precisely because it held to its “ancient, indisputable laws and liberties,” handed down “as an inheritance from our forefathers.”[71]

Abortion fails the substantive due process test. It is not “deeply rooted” in history. At the time the Fourteenth Amendment was ratified in 1868, thirty of the thirty-seven states had criminal statutes banning elective abortions—and twenty-seven of those thirty statutes applied even before quickening (around eighteen weeks).[72] Roe thus overturned the laws of nearly every state.

Looking further back in time does nothing to recommend a right to an abortion. At common law, abortion at any stage was “without lawful purpose.”[73] Abortion performed when a woman was “quick with child” was an indictable offense.[74] And while there might be some debate about the rare circumstances in which the common law sometimes failed to find an early abortion indictable given evidentiary concerns, there is simply no history or tradition of a right protecting abortion.[75]

Casey also recognized that abortion is a “unique act” and that there is more than one person’s interest at stake.[76] No other substantive due process right, or constitutional right generally, allows for “the purposeful termination of a potential life.”[77] This factor alone should give the Court pause and require a careful substantive due process analysis to ensure the Court is getting it right. At the end of the day, even the plurality in Casey could not agree that the Constitution contained a right to an abortion but merely that stare decisis permitted the Court to adhere to Roe.[78] The Supreme Court’s abortion jurisprudence is at odds with substantive due process law.

3. Roe is Inconsistent with Other Areas of U.S. Law

The Supreme Court’s abortion jurisprudence wreaks havoc on most every area of law it touches. Generally speaking, the Court refuses to let disagreements “prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it.”[79] Not so for abortion. As Justice O’Connor presciently observed, “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”[80] Today, the Supreme Court has crafted rules—“good for [abortion] law only”[81]—on everything from facial challenges, to severability, to third-party standing.

a. Facial Challenges

The Salerno rule ordinarily governs facial standards. Under that case, a facial challenge may succeed only where “no set of circumstances exists under which the Act would be valid.”[82] If such a circumstance exists, a plaintiff cannot succeed on a facial challenge and must instead bring an as-applied challenge to the law.[83]

The facial challenge at issue in Casey did not meet Salerno’s standard. Only 1% of women seeking abortions were impacted by Pennsylvania’s spousal-notification requirement at issue in the case.[84] Instead of rejecting the facial challenge, the Court turned Salerno’s test on its head, declaring that the “proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”[85] The Court thus discounted all the circumstances in which the law could operate constitutionally (usually the death knell for a facial challenge). It held the law facially invalid because it would operate unconstitutionally “in a large fraction of the cases” in which the notification requirement was relevant.[86]

Judges and commentators alike have noted the discrepancy between the facial challenge requirements articulated by Casey and Salerno.[87] The debate “focused on whether Casey provided a new standard of review for facial challenges to abortion statutes or whether the previous standard set forth in United States v. Salerno remained the standard.”[88] The Supreme Court has looked to Casey’s large fraction test instead of Salerno’s no-set-of-circumstances test,[89] and a majority of the lower courts have concluded that Casey, rather than Salerno applies, in abortion cases.[90] The abortion exception to general rules governing facial challenges is inconsistent with the general tenor of legal principles.

b. Severability

Severability is a key tenet of American constitutional law, and when a state statute is involved, it is grounded in the idea of dual sovereignty.[91] Federal courts have long employed a strong presumption that a statute is severable because courts should not “nullify more of a legislature’s work than is necessary.”[92] The severability doctrine traces to Chief Justice Marshall’s 1829 opinion in Bank of Hamilton v. Lessee of Dudley Bank: “If any part of [a statute] be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the [United States].”[93]

Under current severability doctrine, the federal courts typically “enjoin only the unconstitutional applications of a statute.”[94] The Court undertakes to salvage as much of the statute as possible by “severing any problematic portions while leaving the remainder intact.”[95] Where the legislature has expressed its preference for severability in a statutory severability clause, “strong evidence” is required to rebut the presumption of severability.[96]

The Court plays by different rules when it considers abortion laws. In Whole Woman’s Health, a majority on the Court invalidated the entire regulatory system rather than sever the offending provision.[97] As Justice Alito noted, the Court ignored “what must surely be the most emphatic severability clause ever written.”[98] The Texas law at issue in Whole Woman’s Health stated repeatedly the legislature’s intent to retain the constitutional portion if any part of the law were to be invalidated, and its language could not have been clearer: “If any application of any provision in this Act to any person, group of persons, or circumstances is found by a court to be invalid, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected.”[99] The Court swept aside both its traditional severability doctrine and the express intent of the Texas state government, in a move that Justice Alito characterized as reviving the “antagonistic ‘canon of construction under which in cases involving abortion, a permissible reading of a statute is to be avoided at all costs.’”[100] When it comes to abortion, traditional severability rules, generally considered to be “noncontroversial,” do not apply.[101]

c. Third-Party Representation

Whether a plaintiff has standing to bring suit is “the threshold question in every federal case.”[102] Prudential standing requirements ordinarily require a plaintiff to “assert his own legal rights and interests.”[103] It is blackletter law that a plaintiff “cannot rest his claim to relief on the legal rights or interests of third parties.”[104] This general rule is subject to a “limited” exception when the third party can show: (1) that the third party has “a ‘close’ relationship with the person who possesses the right,” and (2) that “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.”[105]

Conflicts of interests usually preclude third-party representation because of the “risk that the party will not provide adequate representation of the interest of the absentee.”[106] Class action rules thus require the named plaintiff to have the same injury as class members to “uncover conflicts of interest.”[107] And a party representing a minor may be replaced where a conflict of interest exists.[108]

The rule is not so limited in abortion cases. As Judge Bush recently explained in his dissent in EMW Women’s Surgical Center v. Friedlander, abortion cases are unusual because it is common for women’s interests to be represented by abortion clinics.[109] In abortion cases, “the interests of the abortion providers who bring the suit are deemed to be aligned with those of the affected parties, their patients.”[110] The uncritical awarding of third party standing to abortion clinics is out of step with ordinary standing principles and does not satisfy the two-step inquiry needed for third-party standing.

In many abortion cases, abortion providers do not have a close relationship with their patients. Abortion providers typically see their patient only once, during the procedure.[111] Many women don’t know who their abortion provider even is, much less possess a close doctor-patient relationship.[112]

In Singleton, a plurality of the Supreme Court loosened third-party standing rules because they worried that women were hindered from bringing suit because of privacy and timeliness concerns.[113] But these “alleged ‘obstacles’ . . . are chimerical.”[114] Litigants frequently bring suit under a pseudonym, pro bono counsel is readily available, and, as Roe explained, a woman’s abortion suit is not moot because “[p]regnancy provides a classic justification for a conclusion of non-mootness.”[115]

Worse still, there are many cases in which the interests of pregnant women and abortion providers are in direct conflict. States often seek to protect the health and safety of women by, for example, requiring physicians performing abortions to have admitting privileges at local hospitals or requiring abortion clinics to conform to ambulatory surgical-center requirements. As with any for-profit industry, abortion clinics are incentivized to perform as many abortions as possible as quickly as possible while avoiding as much regulation as possible.[116]

A recent Sixth Circuit case highlights how federal courts ignore ordinary third-party representation rules to the detriment of women. In 2018, the Kentucky legislature banned certain dismemberment abortions.[117] An abortion clinic immediately filed suit, but no woman wanting to obtain an abortion challenged Kentucky’s law. Instead, while abortion providers refused to obtain the training on providing an abortion that did not dismember a living child, studies showed that most women obtaining an abortion (in one study, 92%) expressed a strong preference for such a procedure.[118] It’s not hard to guess why. Evidence at trial showed that, in a D&E procedure, the baby bleeds to death from “literally having arms and legs pulled off.”[119] As the Supreme Court has recognized, “No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life.”[120] Despite the obvious conflict of interest that existed between abortion doctors and women, the Sixth Circuit found that abortion providers could challenge the statute.

In cases of conflict, the Supreme Court’s third-party standing doctrine harkens back to the outdated and paternalistic sentiment expressed in Roe that women should defer to their physicians. Roe was “physician-centered,” focusing on “a doctor’s freedom to practice his profession as he thinks best.”[121] The case did not speak of a woman’s decision but rather that “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”[122] As Justice Ginsburg noted,  Roe depicts a scenario of “the woman in consultation with her physician,” and thus “the picture that I got from [Roe] was tall doctor and little woman needing . . . his advice and care.”[123] The Court’s transmogrification of third-party standing breathes new life into Justice Ginsburg’s concern.

In short, Roe and Casey flunk Burke’s most important requirement; they are not agreeable to “the general tenor or legal principles.”[124] Those decisions and their progeny flout ordinary judicial principles and cause the Court to implement a variety of rules “good for [abortion] law only.”[125]

B. Concurrent and Not Contradictory and Mutually Destructive

“Contradictory” is as good an adjective as any for describing American abortion law. Since nothing in the Constitution’s text, structure, or history establishes a right to abortion, the Court’s abortion jurisprudence has been long in search of a constitutional home. This has led to confusing and conflicting jurisprudence as the Court has traded one constitutional test and rationale for a succession of other tests and modified rationales. Fifty years in, the supposed right to an abortion is as unmoored as it was in 1973.

1. Roe and Casey Have Generated Conflicting Jurisprudence

To start at the beginning, Roe relied on penumbras and emanations from rights recognized by the Bill of Rights to design what looked very much like a legislative coda.[126] During the first trimester, the physician in consultation with his patient could decide to end a pregnancy.[127] During the second trimester, the state could regulate abortion, but only to protect a woman’s health.[128] In the third trimester, the state could prohibit abortions (except when necessary to save the life or health of the mother).[129]

It did not take long for Roe’s trimester lines to “blur.”[130] Within a few years, Justice O’Connor was decrying Roe’s trimester test as “completely unworkable” and an illegitimate and unhelpful framework for balancing the philosophical issues involved in abortion.[131] At the outset, Roe failed to acknowledge that the State’s important interest in protecting unborn life existed throughout the pregnancy.[132] Further, the Roe framework was, in Burke’s words, “mutually destructive.”[133] Advancements in medical technology simultaneously moved the point at which states could regulate for maternal health forward and moved viability and the point at which the state could prohibit abortions backwards.[134] They also put pressure on Roe’s suspect conclusion that life is merely “potential.”[135] As a result, Roe’s trimester framework was “on a collision course with itself.”[136]

The Roe framework generated a confusing array of conflicting opinions. In his dissent in Casey, Chief Justice Rehnquist pointed out the “confused state of th[e] Court’s abortion jurisprudence” on everything from parental consent to rights of the father.[137] For example, in H. L. v. Matheson, the Supreme Court held that a state could require parental notification before a minor had an abortion.[138] But in Hodgson v. Minnesota, the Court held that a state may not require that both parents be notified unless a judicial bypass was provided.[139]

Or take Missouri v. Danforth, in which the Supreme Court upheld an informed consent requirement, writing that “it is desirable and imperative that [an abortion decision] be made with full knowledge of its nature and consequences.”[140] But just a few years later, in Thornburgh v. American College of Obstetricians and Gynecologists, the Supreme Court struck down a Pennsylvania law requiring women be informed about the health risks of abortion and that help was available should she carry her baby to term, labeling these requirements “the antithesis of informed consent.”[141] And in a second case, Akron, the Supreme Court struck down several informed consent requirements.[142] The Court held that a state could not require that physicians (as opposed to nonphysicians) furnish constitutionally permissible information[143] and struck down Pennsylvania’s informed consent regulation as too “lengthy and inflexible.”[144]

Things only got worse for judicial constancy under the Roe regime. None of the three cases immediately preceding Casey could garner a majority of the Court but split instead into multiple separate opinions.[145] Consider Hodgson, a case decided just a few years before Casey: Four justices found two-parent notification constitutional; four justices found two-parent notification unconstitutional; one justice found two-parent notification without a judicial bypass unconstitutional; six justices found one-parent notification with bypass constitutional; and three justices found one-parent notification with bypass unconstitutional.[146]

Given all this confusion, it is no surprise the Court undertook a fundamental reexamination of Roe v. Wade just a few years later. In Casey v. Planned Parenthood, the Supreme Court acknowledged that the constitutional basis for Roe was “still questioned.”[147] This time, too, the justices could not agree on much. They issued five separate opinions with only three signing onto what would become the controlling plurality opinion.[148]

Even the plurality could not agree that Roe was rightly decided but tepidly professed to affirming Roe because of stare decisis.[149] In reality, Casey overruled Roe’s key doctrinal framework, discarding the trimester test at its core.[150] In its stead, Casey substituted a novel undue burden test, declaring that states could not promulgate regulations “that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion,” as these regulations would “impose an undue burden on the right.”[151]

Casey fundamentally changed abortion jurisprudence. In addition to replacing Roe’s trimester framework, the Casey plurality concluded that it “must overrule” parts of two other cases as inconsistent with the state’s interest in promoting life.[152] The decision unsettled the Court’s prior abortion cases. As the president of the Center of Reproductive Law and Policy explained, “When push comes to shove, we’re left with a legal standard I can’t figure out. It looks like we’re going to have to relitigate every restriction [on abortion].”[153]

Casey’s undue burden standard was also “not built to last.”[154] The standard was immediately criticized for being manipulable; Justice Scalia worried that the “inherently standardless nature of this inquiry invites the district judge to give effect to his personal preferences about abortion.”[155] Predictably, as with Roe before it, Casey’s undue burden test resulted in “contradictory” cases (thus failing Burke’s prerequisites). As one Court of Appeals judge put it recently, the lower courts are “faced with the seemingly endless task of determining whether a law unduly burdens a woman’s ability to obtain an abortion.”[156] This perennial task has only become more complicated and contradictory over time and is currently the subject of multiple circuit splits.

The “contradictory” and “non-concurrent” nature of the Supreme Court’s post-Casey abortion cases is illustrated by two pairs of cases. First, in a pair of partial birth abortion cases (one state and one federal), the Supreme Court came to opposite conclusions. In the first case, Stenberg v. Carhart, the Court invalidated a Nebraska state law that prohibited D&E abortions, which the Court found “often involve a physician pulling a ‘substantial portion’ of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus.”[157] This prohibition amounted to an “undue burden,” because the D&E procedure was “the most commonly used method for performing previability second trimester abortions.”[158]

In 2003, a bipartisan Congress nevertheless sought to ban partial-birth abortions.[159] The lower courts—three federal district and three federal Courts of Appeals—uniformly struck down the federal ban on partial birth abortion as unconstitutional under Carhart I.[160]

Despite this lower court unanimity, the Supreme Court upheld the federal partial-birth abortion ban. In a case known as Carhart II, the Court distinguished the federal law from Nebraska’s law because the former identified “specific anatomical landmarks” to which the living child must be partially delivered and did not apply to the delivery of “a small portion” of the baby.[161] Otherwise, the dismemberment procedure was quite similar, leading the Carhart II dissenters to complain of an “undisguised conflict with” Carhart I[162] and commentators to worry that “three decades of Supreme Court precedent” were “down the drain.”[163] Today, there is a current conflict among the Courts of Appeals as to whether the State’s interests in protecting life permit D&E abortion bans, with an en banc Fifth Circuit recently concluding that answer is yes.[164]

2. The Contradictions Begun by Roe Continue at the Court Today

A second pair of more recent cases illustrates deep confusion over what the undue burden standard even means today. In two highly fractured cases, a majority of the Supreme Court first rewrote Casey’s undue burden test, and then less than four years later, five different justices seemingly reversed course. In the second case, however, no opinion for the Court commanded a majority, leading lower courts to struggle in applying the Marks rule and hopelessly split over what constitutes an undue burden.

In Whole Woman’s Health, a majority of the Court undertook a major revision of Casey’s undue burden test. That case involved Texas statutes requiring abortion doctors to have admitting privileges at local hospitals and abortion clinics to meet the requirements for ambulatory surgical centers.[165] The Court reinterpreted “the rule announced in Casey” to require courts to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”[166] In evaluating the admitting privileges requirement, the Court therefore balanced the laws’ burdens (clinic closures) with the laws’ benefits (finding that the new law did not advance women’s health).[167] Similarly, the Court balanced the burden of the ambulatory surgical center requirement (clinic closures) with the benefits (accepting the lower court’s findings that the Texas law did not positively affect women’s health).[168]

Make no mistake: Whole Woman’s Health’s balancing test was a break from prior law. Commentators sympathetic to the Court’s recognition of the right to abortion noted that the case had “infused the undue-burden test with new meaning.”[169] Justice Thomas criticized the majority for implementing a “free-form balancing test” that was “contrary to Casey.”[170] He pointed in particular to the Court’s prior decision in Mazurek v. Armstrong.[171] In that case, the Supreme Court upheld Montana’s requirement that physicians perform abortions even though the plaintiffs claimed there was no “health basis for the law.”[172] Plaintiffs argued that the only study “comparing the complication rates for first-trimester abortions performed by [physician-assistants] with those for first-trimester abortions performed by physicians found no significant difference.”[173] The Court found this line of argument about the law’s purported benefit to be “squarely foreclosed by Casey itself.”[174] In other words, the absence of a proven health benefit did not render an otherwise constitutional abortion regulation an undue burden.[175] Yet, it did not take long for courts of appeals to employ Whole Woman’s Health to find a burden undue because a state failed to proffer evidence regarding benefits.[176]

Less than four years later, the Supreme Court split into six separate opinions in assessing the effect of Whole Woman’s Health on the undue burden standard. A plurality of justices invalidated a Louisiana law imposing ambulatory surgical requirements on abortion clinics because it “pose[d] a ‘substantial obstacle’ to women seeking an abortion” and “offer[ed] no significant health-related benefits.”[177]

Chief Justice Roberts concurred in the judgment on stare decisis grounds but rejected the idea “that the undue burden standard requires courts to weigh the law’s asserted benefits against the burdens it imposes on abortion access.”[178] According to Chief Justice Roberts, “[r]ead in isolation from Casey, such an inquiry could invite a grand ‘balancing test in which unweighted factors mysteriously are weighed.’”[179] The state’s interests in protecting life and women’s health would be balanced against a “woman’s liberty interest in defining her ‘own concept of existence, of meaning, of the universe, and of the mystery of human life’ on the other.”[180] “Pretending that we could pull that off would require us to act as legislators, not judges.”[181] Further, Casey discussed the benefits of regulation only in “considering the threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.’”[182] The Chief concluded that to balance in this area would sacrifice much: “equality of treatment is … impossible to achieve; predictability is destroyed; judicial arbitrariness is facilitated; judicial courage is impaired.”[183]

Because there was no majority opinion in June Medical, the courts of appeals have faced “the ‘vexing task’ of deciding which opinion [out of the six] controls.”[184] They have disagreed. Relying on the plurality opinion in June Medical, the Seventh Circuit has held that Supreme Court precedent now requires courts to balance the burdens and benefits of an abortion law: In one case, “[t]he lopsided evidence of substantial burdens and little or no benefits” meant the state law at issue could not survive.[185] Other courts of appeals have found Chief Justice Roberts’s concurring opinion to be controlling and rejected the Whole Woman’s Health balancing test.[186] To date, the Fifth, Sixth, and Eighth Circuits have concluded that the Chief Justice’s opinion in June Medical is the narrowest opinion under Marks and inquired only about whether a state law imposes a substantial burden under Casey.[187]

Even judges agreeing that Whole Woman’s Health requires balancing have acknowledged that abortion law is “not stable” and “challenging and fluid.”[188] That is about the only consensus that exists when it comes to abortion law. In one case, Judge Easterbrook declined to vote for rehearing en banc, suggesting that such a procedure would be “unproductive” since “[t]he quality of our work cannot be improved by having eight more circuit judges try the same exercise.”[189] He opined:

 

The “undue burden” approach announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), does not call on a court of appeals to interpret a text. Nor does it produce a result through interpretation of the Supreme Court’s opinions. How much burden is “undue” is a matter of judgment. . . . Only the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute. . . . The quality of our work cannot be improved by having eight more circuit judges try the same exercise. It is better to send this dispute on its way to the only institution that can give an authoritative answer.[190]

 

Stare decisis is useful when it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”[191] The good-for-abortion-laws only jurisprudence that has come after Roe is inconsistent with these principles.

C. Made in Good and Constitutional Times 

There is a good argument that Roe was not made in good and constitutional times—in times in which the federal courts properly understood their constitutional role. Simply speaking, the Supreme Court no longer invents fundamental rights out of thin air.

In a 2015 address, Justice Elena Kagan declared that, when it comes to statutory interpretation, “we’re all textualists now.”[192] She joked that, if someone in law school had mentioned “statutory interpretation,” she was not sure she “would even quite have known what that meant.”[193] During that time period, the era in which Roe was decided, statutory interpretation “was not really taught as a discipline.”[194] Rather, the approach was a policy-oriented one: “what should this statute be,” not what do “the words on the paper say.”[195]

That same approach predominated in constitutional interpretation, too. The purposivist school of interpretation dominated the academy training future lawyers and judges alike to view the task of a judge as one of a junior legislative partner, empowered to meet societal need.[196] Late Justice William Brennan, for example, used to ask his new law clerks to name the most important constitution rule.[197] He would then hold up one hand, signifying that with five votes, the Supreme Court could do anything.[198] In the decade preceding Roe, the Supreme Court was expressly purposivist in its jurisprudence, believing it should “‘be alert to provide such remedies as are necessary to make effective’ Congress’ purposes in enacting a statute.”[199] During this time period, it was commonplace for courts to create rights and remedies for policies underlying the Constitution or statutes.[200]

Consider Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics[201] a case decided just two years before Roe. In Bivens, the Supreme Court implied a constitutional cause of action for money damages in violation of the Fourth Amendment. The Bivens Court acknowledged that “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages” but relied on precedent that permitted federal courts to fill in remedial gaps by implying statutory causes of action.[202]

The Supreme Court’s subsequent turn to text, structure, and history has left Bivens (as well as Roe) an anachronism, an unstable remnant of an “ancien regime.”[203] To put it more bluntly, Bivens and Roe are “‘relic[s] of the heady days in which [the Supreme] Court assumed common-law powers to create causes of action.’”[204] The Court has since abandoned the view that the Court may imply statutory causes of action, “consistently rebuffed” attempts to extend Bivens to new circumstances, and suggested Bivens was wrongly decided.[205]

Chief Justice Roberts has cautioned that “substantive due process” analysis is the “most sensitive category of constitutional adjudication.”[206] This is because the Court is “‘most vulnerable and . . . nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.’”[207] When legal analysis is unmoored from text and history, “‘what [a judge] is really likely to be “discovering,” whether or not he is fully aware of it, are his own values.’”[208] In fact, the Court’s “own conception of liberty” can get things very wrong, the most egregious example being Dred Scott, which declared people to be property.[209]

Bivens and Roe are of apiece. They are relics of an ancient regime—a regime that paid too little attention to the separation of powers. In the era of Roe, the original understanding of our founding document carried little weight. This arrogates the judicial over the legislative. It makes self-governance more difficult and less accountable.

Today, in contrast, the Supreme Court recognizes the dangers of going beyond statutory and constitutional text. Take District of Columbia v. Heller. To no one’s surprise, Justice Scalia’s opinion for the majority was an originalist undertaking, extensively reviewing history and tradition to conclude that the Second Amendment provides an individual right to self-defense.[210] Yet Justice Steven’s dissent similarly employed history and text to argue that the Second Amendment was not an individual right but rather limited to militia members.[211]

History and text do not support Roe or the Court’s subsequent abortion jurisprudence. The only thing propping Roe up for nearly fifty years has been stare decisis. But any notion of stare decisis that would uphold Roe is inconsistent with Burke’s respect for tradition and custom.

V. Conclusion

Adherence to precedent, even wrong precedent, may sometimes be necessary to “avoid an arbitrary discretion in the courts.”[212] But the Court’s abortion cases are not entitled to traditional stare decisis: they are egregiously wrong, hopelessly unworkable, and remove from democratic debate a divisive social issue. To adhere to a precedent that is so clearly wrong and so obviously harmful does nothing to promote the rule of law. Edmund Burke believed in the persuasiveness of historical wisdom, but he would caution that the precedent must first possess certain qualities to be accorded the “force of law.” Roe does not possess these qualities. It was not a humble decision but a breathtaking break from  tradition. It has no part in the bank and capital of the nations and ages but is an abrupt historical aberration. The Court’s abortion jurisprudence fails Burke’s test because it is contradictory, disagreeable to general legal principles, and decided in a time when the Supreme Court was willing to extrapolate relying on emanations from the text of the Constitution. To say that one must stick with Roe and its progeny, is to suggest that the judicial branch cannot err. But humility is best shown in the ability to admit that one was wrong. The humble approach is to reverse Roe v. Wade.

Suggested Citation:

 

 

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[1] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2134 (2020) (Roberts, C.J., concurring).

[2] Brief of Petitioners at 1, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (June 22, 2021) (“Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions.”).

[3] John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 937 (1973).

[4] Ruth B. Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 385–86 (1985).

[5] See Brief Amicus Curiae of Reason for Life in support of Petitioners at 4–6, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (July 29, 2021) (explaining that under what many call “safe haven” or “baby Moses” laws, mothers can relinquish their children at certain safe locations shortly after birth).

[7] See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). Justice Alito, joined by Justice Thomas and Chief Justice Roberts, dissented from the Court’s opinion and voted to uphold a Texas statute requiring abortion facilities to maintain admitting privileges and meet surgical center requirements, arguing both that res judicata barred the suit and that the Texas law did not impose an undue burden on women seeking abortions. Id. at 2330–50 (Alito, J., dissenting).

[8] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2134 (2020) (Roberts, C.J., concurring).

[9] Id. (quoting Burke, Reflections on the Revolution in France, infra note 12, at 500).

[10] See, e.g., Samuel P. Huntington, Conservatism as an Ideology, 51 Am. Pol. Sci. Rev. 454, 456 (1957) (“All the analysts of conservatism, moreover, unite in identifying Edmund Burke as the conservative archetype and in assuming that the basic elements of his thought are the basic elements of conservatism.”).

[11] Burke advocated for abolition throughout his career. His 1780 Sketch of the Negro Code laid out an early proposal for abolishing the practice of slavery and emancipating slaves, which he began by observing that “[i]f the African trade could be considered with regard to itself only, and as a single object, I should think the utter abolition to be, on the whole, more advisable, than any scheme of regulation and reform. Rather than suffer it to continue as it is, I heartily wish it at an end.” Edmund Burke, Sketch of the Negro Code, in Reflections on the Revolution in France and Other Writings 328, 328 (Jesse Norman ed., 2015) (1780).

[12] Edmund Burke, Reflections on the Revolution in France, in Reflections on the Revolution in France and Other Writings 425, 563–64 (Jesse Norman ed., 2015) (1790).

[13] Id. at 500.

[14] Id. at 491–92.

[15] Id. at 500.

[16] Burke, Reflections on the Revolution in France, supra note 12, at 500. Burke’s concerns about human nature presage James Madison’s reflections on the nature of man. “But what is government itself, but the greatest of all reflections on human nature. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” The Federalist No. 51 (James Madison). Madison’s concerns culminated in separation of powers principles that divided government power vertically among the three branches and horizontally among the state and federal governments. These principles can be seen at work in the checks and balances of our system.

[17] See Angelina Baglini, Gestational Limits on Abortion in the United States Compared to International Norms, Charlotte Lozier Inst. Am. Reps. Series, Feb. 2014, at 5–7;  Transcript of Oral Argument at 54, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (cert. granted May 17, 2021).

[18] Id.

[19] Id. The study found that, of the fifty-nine countries that permit on-demand abortions, nine place limits on elective abortions beginning before the twelfth week, and thirty-six place limits at the twelfth week.

[20] Angelina B. Nguyen, Mississippi’s 15-Week Gestational Limit on Abortion is Mainstream Compared to European Laws, Charlotte Lozier Inst. On Point Series, July 2021, at 3–4.

[21] Id.

[22] The Washington Post “fact-checked” these statistics and found it “surprising” that data from both sides of the abortion debate confirmed their accuracy. Michelle Ye Hee Lee, Is the United States One of Seven Countries that ‘Allow Elective Abortions After 20 Weeks of Pregnancy?’, Wash. Post (Oct. 9, 2017), https://www.washingtonpost.com/news/fact-checker/wp/2017/10/09/is-the-united-states-one-of-seven-countries-that-allow-elective-abortions-after-20-weeks-of-pregnancy/ [https://perma.cc/DF4H-89YN].

[23] Joseph W. Dellapena, Dispelling the Myths of Abortion History 135 (2006).

[24] Four states decriminalized abortion in 1970. It remained illegal in the remaining forty-six states until 1973, when Roe invalidated all such statutes. See id. at 629.

[25] 5 U.S. 137, 176–177 (1803).

[26] Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 661 (1999).

[27] Gamble v. United States, 139 S. Ct. 1960, 1982 (2019) (Thomas, J., concurring) (quoting 1 William Blackstone, Commentaries *68–69).

[28] Id. at 1983 (quoting 1 William Blackstone, Commentaries *69).

[29] Id. (quoting G. Edward White, The Marshall Court and Cultural Change, 1815-35, in History of the Supreme Court of the United States 129 (1988)).

[30] Id. (quoting 1 William Blackstone, Commentaries *69).

[31] Id.

[32] Id. (quoting 1 William Blackstone, Commentaries *70).

[33] U.S. Const. art. III, § 1.

[34] Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 3, 13 (Amy Guttman ed., 2018).

[35] Id.

[36] Gamble, 139 S. Ct. at 1981 (Thomas, J., concurring).

[37] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2134 (2020) (Roberts, C.J., concurring) (quoting Robert H. Jackson, Decisional Law & Stare Decisis, 30 ABA J. 334 (1944)).

[38] See Jeremy Rozansky, Precedent and the Conservative Court, Nat’l Affs. (Winter 2021), https://nationalaffairs.com/publications/detail/precedent-and-the-conservative-test [https://perma.cc/GUV5-J3L2] (last visited Mar. 17, 2022) (“By and large, the conventional picture of Burkean jurisprudence relies on passages in which Burke is discussing not judging, but statesmanship. . . . Burke explains not how a common-law judge should rule, but how a statesman might learn from the common-law judge.”); see also Yuval Levin, Roberts v. Burke, Nat’l Rev. (Jun. 29, 2021), https://www.nationalreview.com/corner/roberts-vs-burke/.

[39] Burke, Reflections on the Revolution in France, supra note 12, at 450.

[40] See supra note 11 and accompanying text.

[41] See Edmund Burke, Remarks to the Lords in the Trial of Hastings, Dec. 23, 1790, in The Parliamentary Register, Vol. XXVII 257 (1790).

[42] See generally id. “Mr. Searjeant [sic] Watson thought that the idea of an impeachment not abating with a dissolution, was contrary to the law of the land. The Searjeant adverted to the precedent of 1701; and mand [sic] several observations respecting it. He concluded with expressing a wish that a Committee should be appointed to examine into the journals of the House of Lords, and report precedents more at large.” Id. at 255.

[43] Id. at 258.

[44] Id.

[45] Id.

[46] Arguably, abortion precedents satisfy Burke’s numerosity criteria. Because abortion law is often indeterminate, leaving the Supreme Court ultimately to determine how abortion law applies in a particular circumstance, the Supreme Court must frequently address abortion. Similarly, Roe may not have been made to “serve an occasion;” it was not a case that was good for one day and train only but instead invalidated state laws nationwide. Even so, Burke was clear that a precedent must satisfy all five of his criteria to be “full of authority in law.” Id.

[47] Id.

[48] Ramos v. Louisiana, 140 S. Ct. 1390, 1415 (2020) (Kavanaugh, J., concurring in part).

[49] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2321 (2016) (Thomas, J., dissenting).

[50] Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 547 (1985).

[51] Stenberg v. Carhart, 530 U.S. 914, 947 (2000) (O’Connor, J., concurring).

[52] Maher v. Roe, 432 U.S. 464, 479 (1977).

[53] Ginsburg, supra note 4, at 385–86.

[54] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., dissenting).

[55] Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, J., dissenting).

[56] Id. at 814–15.

[57] Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 99 (1976) (White, J., concurring in part and dissenting in part).

[58] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2136 (2020) (Roberts, C.J., concurring).

[59] Id.

[60] See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., dissenting).

[61] Ely, supra note 3, at 947.

[62] Laurence H. Tribe, American Constitutional Law 893 (1978).

[63] Casey, 505 U.S. at 853.

[64] Harris v. McRae, 448 U.S. 297, 325 (1980).

[65] See generally Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (2005).

[66]  Casey, 505 U.S. at 846 (“[T]he Due Process Clause of the Fourteenth Amendment . . . declares that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The controlling word in the cases before us is ‘liberty.’”).

[67] Id. at 851, 852.

[68] Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (citations omitted).

[69]  Id. at 721.

[70] Obergefell v. Hodges, 576 U.S. 644, 697–99 (2015) (Roberts, C.J., dissenting) (quoting Moore v. E. Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting)).

[71] Burke, Reflections on the Revolution in France, supra note 12, at 450.

[72] See James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment, 17 St. Mary’s L. J. 29, 33–34 (1985).

[73] Commonwealth v. Parker, 50 Mass. 263, 265 (1845).

[74] John M. Finnis & Robert P. George, An Enhanced Amicus Brief in Dobbs 20 (Nov. 2, 2021) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3955231.

[75] Id. at 21.

[76] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992).

[77] Harris v. McRae, 448 U.S. 297, 325 (1980).

[78] Casey, 505 U.S. at 853.

[79] Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, J., dissenting).

[80] Id.

[81] See Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S. 44, 55 (2011) (“[W]e are not inclined to carve out an approach to administrative review good for tax law only.”).

[82] United States v. Salerno, 481 U.S. 739, 745 (1987).

[83] See id.

[84] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 894 (1992).

[85] Id.

[86] Id. at 895.

[87] See, e.g., A Woman’s Choice–E. Side Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002); Skye Gabel, Casey “Versus” Salerno: Determining an Appropriate Standard for Evaluating the Facial Constitutionality of Abortion Statutes, 19 Cardozo L. Rev. 1825, 1828 (1998).

[88] Rachel D. King, A Back Door Solution: Stenberg v. Carhart and the Answer to the Casey/Salerno Dilemma for Facial Challenges to Abortion Statutes, 50 Emory L. J. 873, 873–74 (2001).

[89] Stenberg v. Carhart, 530 U.S. 914, 937–38, 945–46 (2000).

[90] See Richmond Med. Ctr. for Women v. Hicks, 409 F.3d 619, 627 (4th Cir. 2005) (collecting cases from seven circuits (First, Third, Sixth, Seventh, Eighth, Ninth, and Tenth) which conclude that the standard set out in Salerno does not apply to facial challenges to state abortion regulations).

[91] See Kenneth A. Klukowski, Severability Doctrine: How Much of a Statute Should Federal Courts Invalidate?, 16 Tex. Rev. L. & Pol. 1, 10–14 (2011) (discussing the history of the severability doctrine, which “has developed in a logical and coherent fashion”) Klukowski argues that even though the first explicit invocation of the doctrine was by Chief Justice Marshall in Bank of Hamilton, the first real application of severability was in Marbury v. Madison, when the Court struck down only the unconstitutional portion of the Judiciary Act and never even considered invalidating the whole. Id.

[92] Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006).

[93] Klukowski, supra note 91, at 14 (quoting Bank of Hamilton v. Lessee of Dudley, 27 U.S. (2 Pet.) 492, 526 (1829)).

[94] Ayotte, 546 U.S. at 329.

[95] Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508 (2010).

[96] Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).

[97] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2319–20 (2016); see also id. at 2351–52 (Alito, J., dissenting) (“[The Court’s] main argument is that it need not honor the severability provision because doing so would be too burdensome. This is a remarkable argument.”) (internal citation omitted).

[98] Id. at 2331 (Alito, J., dissenting).

[99] See id. at 2350 n.34 (Alito, J., dissenting) for the full text of the Texas law’s severability clause.

[100] Id. at 2353 (quoting Gonzales v. Carhart, 550 U.S. 124, 153 (2007)).

[101] Klukowski, supra note 91, at 10.

[102] Warth v. Seldin, 422 U.S. 490, 498 (1975).

[103] Id. at 499.

[104] Conn v. Gabbert, 526 U.S. 286, 293 (1999) (quoting Warth, 422 U.S. at 499).

[105] Kowalski v. Tesmer, 543 U.S. 125, 130 (2004).

[106] 7C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 1909 (3d ed. 2008).

[107] Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).

[108] 6A Wright & Miller, supra note 106, at §1570; see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004); Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77, 86 (1st Cir. 2010).

[109] See EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785, 812 (6th Cir. 2020) (Bush, J., dissenting).

[110] Id. (emphasis added).

[111] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2168 (2020) (Alito, J., dissenting).

[112] Id.

[113] Singleton v. Wulff, 428 U.S. 106, 117 (1976) (“As to the woman’s assertion of her own rights, there are several obstacles. For one thing, she may be chilled from such assertion by a desire to protect the very privacy of her decision from the publicity of a court suit. A second obstacle is the imminent mootness, at least in the technical sense, of any individual woman’s claim. Only a few months, at the most, after the maturing of the decision to undergo an abortion, her right thereto will have been irrevocably lost . . . .”)

[114] Id. at 126 (Powell, J., concurring in part and dissenting in part). Powell continued by explaining that the Court’s “docket regularly contains cases in which women, using pseudonyms, challenge statutes that allegedly infringe their right to exercise the abortion decision. Nor is there basis for the ‘obstacle’ of incipient mootness when the plurality itself quotes from the portion of Roe v. Wade, that shows no such obstacle exists.” Id.

[115] Roe v. Wade, 410 U.S. 113, 125 (1973) (“Because a woman can become pregnant again, the capable of repetition yet evading review exception to mootness applies.”).

[116] See June Medical, 140 S. Ct. at 2166 (Alito, J., dissenting) (“Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations . . . . Women seeking abortions, on the other hand, have an interest in the preservation of regulations that protect their health. The conflict inherent in such a situation is glaring.”).

[117] Ky. Rev. Stat. Ann. § 311.787 (LexisNexis 2022). The statute prohibits performing an abortion procedure past eleven weeks’ gestation where an abortion provider “dismembers the living unborn child and extracts portions, pieces, or limbs of the unborn child from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that . . . slices, crushes, or grasps . . . any portion, piece, or limb of the unborn child’s body to cut or separate the portion, piece, or limb from the body.”

[118] EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785, 816 (6th Cir. 2020) (Bush, J., dissenting). “We know from studies of women who are undergoing abortion that they are conscious of what is happening to their fetus and that for many that’s quite disturbing.” Id. (quoting testimony of Dr. Farr A. Curlin, professor at the Duke University School of Medicine).

[119] Id.

[120] Gonzales v. Carhart, 550 U.S. 124, 158 (2007).

[121] Ruth Bader Ginsburg, Justice Ruth Bader Ginsburg and Geoffrey Stone, “Roe at 40”, U. Chi. L. Sch. (May 11, 2013), https://www.law.uchicago.edu/recordings/justice-ruth-bader-ginsburg-and-geoffrey-stone-roe-40 [https://perma.cc/GQ8A-WY5W].

[122] Roe v. Wade, 410 U.S. 113, 163 (1973) (emphasis added).

[123] Ginsburg, supra note 121.

[124] Burke, Remarks to the Lords in the Trial of Hastings, Dec. 23, 1790, supra note 41, at 258.

[125] See Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S. 44, 55 (2011).

[126] Roe, 410 U.S. at 164–65.

[127] Id.

[128] Id.

[129] Id.

[130] City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416, 455 (1983) (O’Connor, J., dissenting).

[131] Id. at 454.

[132] Id. at 461 (“At any stage in pregnancy, there is the potential for human life. . . . The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward.”).

[133] Burke, Remarks to the Lords in the Trial of Hastings, Dec. 23, 1790, supra note 41, at 258.

[134] City of Akron, 462 U.S. at 458.

[135] See id. at 461.

[136] Id. at 458.

[137] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 944, 946–50 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part).

[138] 450 U.S. 398, 407–10 (1981).

[139] 497 U.S. 417, 450 (1990).

[140] Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67 (1976).

[141] Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 764 (1986).

[142] City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983).

[143] Id. at 448–49 (1983).

[144] Id. at 445.

[145] See Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990); Hodgson v. Minnesota, 497 U.S. 417 (1990); Webster v. Reproductive Health Servs., 492 U.S. 490 (1989).

[146] Hodgson, 497 U.S. at 417–21.

[147] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned.”).

[148] Id. at 843–44.

[149] Id. at 865, 870.

[150] See Ramos v. Louisiana, 140 S. Ct. 1390, 1411–12, 1412 n.80 (2020) (Kavanaugh, J., concurring in part) (listing Casey’s “expressly reject[ing] Roe’s trimester framework” amongst cases demonstrating that “the Court’s most notable and consequential decisions have entailed overruling precedent”).

[151] Casey, 505 U.S. at 878.

[152] Id. at 870 (“[W]e must overrule [] parts of Thornburgh and Akron I . . . .”). Casey thus overruled Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 759 (1986) (invalidating requirement that women receive printed materials from state discouraging abortion), and City of Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 437 (1983) (invalidating requirement that all second trimester abortions be performed in hospital).

[153] Tamar Lewin, The Supreme Court; Clinics Eager to Learn Impact of Abortion Ruling, N.Y. Times (July 1, 1992), https://www.nytimes.com/1992/07/01/nyregion/c-the-supreme-court-clinics-eager-to-learn-impact-of-abortion-rulinga-correction-158092.html [https://perma.cc/9GY2-E2RG].

[154] Casey, 505 U.S. at 965 (Rehnquist, C.J., dissenting).

[155] Id. at 992 (Scalia, J., dissenting).

[156] Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d 740, 752 (7th Cir. 2021) (Kanne, J., dissenting).

[157] Stenberg v. Carhart (Carhart I), 530 U.S. 914, 922, 939 (2000).

[158] Id. at 945–46.

[159] Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531.

[160] See Planned Parenthood Fed’n of Am., Inc. v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004), aff’d, Planned Parenthood Fed’n of Am., Inc. v. Gonzales, 435 F.3d 1163 (9th Cir. 2006), rev’d, Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007); Carhart v. Ashcroft, 331 F. Supp. 2d 805 (Neb. 2004), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev’d, Carhart II, 550 U.S. 124; Nat’l Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436, 482 (S.D.N.Y. 2004), aff’d in part sub nom Nat’l Abortion Fed’n v. Gonzales, 437 F.3d 278 (2d Cir. 2006), vacated, Nat’l Abortion Fed’n v. Gonzales, 224 F. App’x 88 (2d Cir. 2007).

[161] Carhart II, 550 U.S. 124, 152–53.

[162] Id. at 179 (Ginsburg, J., dissenting).

[163] See Katia Desrouleaux, Banning Partial-Birth Abortion at All Costs-Gonzales v. Carhart: Three Decades of Supreme Court Precedent “Down the Drain”, 35 S.U. L. Rev. 543 (2008); Jennifer L. George, The United States Supreme Court Failed to Follow over Thirty Years of Precedent by Replacing Individualized Medical Judgment with Congressional Findings, 41 Creighton L. Rev. 219 (2008).

[164] Whole Woman’s Health v. Paxton, 10 F.4th 430, 435–36 (5th Cir. 2021) (holding that the district court was required to consider the state’s interests in ruling on the validity of a Texas law prohibiting “live dismemberment” abortions, and that the statute did not, on its face, place a substantial obstacle in the path of women seeking abortions).

[165] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016).

[166] Id. at 2309.

[167] Id. at 2310–14.

[168] Id. at 2314–18.

[169] Mary Ziegler, Liberty and the Politics of Balance: The Undue-Burden Test After Casey/ Hellerstedt, 52 Harv. C.R.-C.L. L. Rev. 421, 461–62 (2017).

[170] Hellerstedt, 136 S. Ct. at 2324 (Thomas, J., dissenting).

[171] 520 U.S. 968 (1997).

[172] Id. at 973 (internal quotation omitted).

[173] Id.

[174] Id.

[175] See id. The Court held that the Constitution gives the states broad latitude to regulate abortion even if “an objective assessment” suggested that “those same tasks could be performed by others.” Id. (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885 (1992)) (emphasis in original).

[176] Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937 F.3d 973, 981 (7th Cir. 2019).

[177] June Med. Servs., L.L.C. v. Russo, 140 S. Ct. 2103, 2132 (2020).

[178] Id. at 2135 (Roberts, C.J., concurring in the judgment) (internal quotation omitted).

[179] Id. (citation omitted).

[180] Id. at 2136 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851, 871 (1992)).

[181] Id.

[182] Id. at 2138 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878, 882 (1992)).

[183] Id. at 2135 (quoting Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)).

[184] EMW Women’s Surgical Center, P.S.C. v. Friedlander, 978 F.3d 418, 431 (6th Cir. 2020), reh’g en banc denied Dec. 31, 2020 (citation omitted); Preterm-Cleveland v. McCloud, 994 F.3d 512, 524–25 (6th Cir. 2021); see Hopkins v. Jegley, 968 F.3d 912, 915 (8th Cir. 2020) (“Chief Justice Robert[s]’s vote was necessary in holding unconstitutional Louisiana’s admitting-privileges law, so his separate opinion is controlling.”), reh’g and reh’g en banc denied, No. 4985329 (8th Cir. Dec. 15, 2020); see also Hopkins, 968 F.3d at 915 (“According to Chief Justice Roberts, the appropriate inquiry under Casey is . . . ‘not whether benefits outweighed burdens’. . . . [Benefits are] ‘consider[ed] [only in] the threshold requirement that the State [has] a “legitimate purpose” and that the law be “reasonably related to that goal.”’”) (first quoting June Medical, 140 S. Ct. at 2137–38; then quoting Casey, 505 U.S. at 878); EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 437 (6th Cir.) (“The Chief Justice’s opinion in June Medical Services concurs in the judgment on the narrowest grounds, so it is the ‘controlling opinion’ from that decision.”) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)), reh’g en banc denied, No. 104–1 (6th Cir. Dec. 31, 2020).

[185] Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d 740, 751 (7th Cir. 2021).

[186] See Whole Woman’s Health v. Paxton, 10 F.4th 430, 441–42 (5th Cir. 2021) (“Under the Chief Justice’s controlling concurrence in June Medical, the district court erred by balancing SB8’s benefits against its burdens. That is reason alone to reject the district court’s findings.”); Hopkins, 968 F.3d at 915; EMW Women’s Surgical Ctr., 978 F.3d at 437; Little Rock Family Planning Servs. v. Rutledge, 984 F.3d 682, 687 n.2 (8th Cir. 2021).

[187] See supra note 186.

[188] Planned Parenthood of Ind. & Ky., Inc., 991 F.3d at 741, 751 n.7.

[189] Id. at 998–99 (Easterbrook, concurring in denial).

[190] Id.

[191] Kimble v. Marvel Ent., L.L.C., 576 U.S. 446, 455 (2015) (quoting Payne v. Tennessee, 501 U.S. 808, 827–28 (1991)).

[192] Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube (Nov. 25, 2015), https://www.youtube.com/watch?v=dpEtszFT0Tg [https://perma.cc/H883-7RS8].

[193] Id.

[194] Id.

[195] Id.

[196]Judge Diarmuid F. O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 91 St. John’s L. Rev. 303 (2017).

[197] See Stephen Wermiel, Justice Brennan and His Law Clerks, 98 Marq. L. Rev. 367, 381 (2014).

[198] Id.

[199] Hernandez v. Mesa, 140 S. Ct. 735, 750 (2020) (Thomas, J., concurring) (quoting J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964)).

[200] Id. at 750–51.

[201] 403 U.S. 388, 389, 397 (1971).

[202] Id. at 396–97.

[203] Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (quoting Alexander v. Sandoval, 532 U.S. 275, 287 (2001)).

[204] Wilkie v. Robbins, 551 U.S. 537, 568 (2007) (Thomas, J., concurring) (quoting Correctional Services Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring)).

[205] Alexander v. Sandoval, 532 U.S. 275 (2001) (abrogating Borak, 377 U.S. 426); Abbasi,  137 S.Ct. at 1857 (stating the Court has “consistently refused to extend Bivens liability to any new context or new category of defendants” (internal citation omitted)); Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) (“[T]he analysis in the Court’s [first] three Bivens cases might have been different if they were decided today.”) (quoting Abbasi, 137 S. Ct. at 1856); Hernandez, 140 S. Ct. at 743 (“And for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens.”).

[206] Obergefell v. Hodges, 576 U.S. 644, 694 (2015) (Roberts, C.J., dissenting).

[207] Id. (quoting Moore v. E. Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting)).

[208] Id. (quoting John Hart Ely, Democracy and Distrust 44 (1980)).

[209] Id. at 698–99.

[210] District of Columbia v. Heller, 554 U.S. 570 (2008).

[211] Id. at 637 (Stevens, J., dissenting).

[212] The Federalist No. 78, at 529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).