FORUM

"Do you believe that Roe v. Wade should be overruled?”

This is often considered the Big Question for judicial nominees appearing at Senate confirmation hearings, but it may well be the Wrong Question. Posed this way, the Roe query really does little to inform the public about the views of any prospective nominees to the Supreme Court and other federal tribunals. It belies what astute constitutional scholars already know - that what really threatens the rule of Roe is not the possibility of its total abolition but the reality of its piecemeal demise.

This is the lesson to be gleaned from what an often reactionary Supreme Court has done to important Warren Court precedents. Two of those landmark rulings have been slowly and systematically deconstructed beyond all repair. Roe’s fate is likely to be the same.

Among the Warren Court’s most significant contributions to constitutional justice were its Fourth and Fifth Amendments rulings affirming bedrock individual rights. In the case of the former, the seminal precedent is Mapp v. Ohio (1961), in which the Court held that evidence obtained in violation of the Constitution’s search and seizure clause must be excluded from presentation at state trials. In the latter case, the watershed ruling is Miranda v. Arizona (1966), in which confessions obtained in violation of the self-incrimination clause were deemed inadmissible in state courts.

Both Mapp and Miranda remain, in a formal sense, the law of the land. Neither has been expressly overruled. Yet in a very practical sense, the rule of both has been - and continues to be, even this Court term - weakened to the point where it is all too easy to circumvent the spirit and rule of both.

Landmark precedents are seldom overruled. This is especially true with precedents affirming constitutional rights. Even so, the reactionary wings of the Burger and Rehnquist Courts have chipped steadily away at the edifice of constitutional rights, particularly in the criminal justice area. The hope is that in time the edifice will crumble. Indeed, right now at least 15 exceptions to Mapp and another 15 or more to Miranda already exist. According to University of Michigan law professor Yale Kamisar (the foremost authority in the area): “Today, Miranda is so riddled with exceptions and qualifications that Earl Warren, its author, would hardly recognize it.”

Chief Justice William Rehnquist, more than others, has led the assault on Miranda, much as he continues to lead the attack on Roe. Over the years, Rehnquist called for Miranda’s abolition, so much so that in 1999 a renegade panel of the Court of Appeals for the Fourth Circuit invoked his logic to set aside the landmark Warren Court precedent. But when the case came to the Supreme Court two years ago, the Fourth Circuit was overruled and Miranda reaffirmed by a 7-2 margin. Only the Court’s two most extreme justices, Antonin Scalia and Clarence Thomas, dissented.

“This Court declines to overrule Miranda.” So wrote Chief Justice Rehnquist for the majority in Dickerson v. U.S. (2000). “Whether or not this Court would agree with Miranda’s reasoning and its rule in the first instance,” he added, the judicial custom of honoring established precedent “weighs heavily against overruling it now.” Moreover, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Miranda, like Roe, has become a part of the American way of life.

Grudging is how to best describe the Chief Justice’s acceptance of Miranda. Though he declined to formally overrule it, he readily endorsed the practice of diminishing its real-world effectiveness. “Subsequent cases,” he stressed with great approval, “have reduced Miranda’s impact on legitimate law enforcement while reaffirming the decision’s core ruling.” That core, however, is imploding.

The current Court - even if anti-abortion jurists were to replace Chief Justice Rehnquist and Justice Sandra Day O’Connor - is more likely to continue riddling Roe with exceptions and qualifications rather than to overrule it outright. That reality is now well underway. For example, some twenty years ago a woman’s right to reproductive choice was reaffirmed as a “fundamental right.” Now, thanks to various anti-Roe Court rulings, reproductive choice is a mere “liberty claim” subject to all sorts of restrictions and “burdens.” Consistent with that mindset, the Court has sustained a host of practical impediments to abortion services, including bans on Medicaid funding of abortions for poor women. So, too, it has upheld mandatory waiting periods before a woman can obtain an abortion.

As Bruce Fein (a noted Roe v. Wade critic) sees it, explicitly overruling Roe would be “too wrenching.” The “revolution in the courts,” he recently said, will come when Bush nominees create a variety of new exceptions to Roe. The logic, grounded in a lie, is to give the impression that Roe is the law when in fact it is not. Chief Justice Rehnquist, for one, is duly mindful of that point. For as he declared in his opinion in Planned Parenthood v. Casey (1992), “Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere façade to give the illusion of reality.” That illusion very much reflects the status quo of a weakened Roe and may also portend its future, replete with yet more exceptions and qualification to its core rule. In short, Roe may follow the path of Miranda and Mapp; if so, it would become a right more honored in the breach.

In this context, the Big Question can yield little. The two sides in the abortion debate need to move beyond the howls of sloganeering to the nuances of court decisions where the law is made and the future ordained. The line of questioning, then, that needs be devised and developed must concern the legitimacy and wisdom of the piecemeal destruction of Roe v. Wade. Absent that, the Big Question can only produce answers that give liberals false hopes and conservatives false impressions.

January 22, 2003