Post buries lede: Liberal and conservative scholars agree Roe is bad case law

In today's Washington Post, staff writers Amy Goldstein and Jo Becker relay excerpts from Supreme Court nominee Judge John Roberts writings during his tenure in the Justice Department and the Reagan White House which show conservative leanings on social issues like abortion and affirmative action. Goldstein and Becker start off citing a 1985 memo, then hint that it provides perhaps the "clearest insight to date on Roberts's personal views on abortion.' Of course, Roberts's personal views on abortion aren't as relevant to legal precedents like Roe v. Wade, as much as the legal reasoning underpinning such precedent. As a Court justice, Roberts would be expected to interpret the Constitution objectively and correctly, not according to his personal views. So that said, it seems Goldstein and Becker really buried the lede as later, deep within their piece, they relay something you'll never likely see front and center in a liberal metropolitan newspaper: the fact that liberal and conservative legal scholars alike agree Roe v. Wade is bad case law, arrived at by shoddy legal reasoning.

Bruce Fein, who worked closely with Roberts at the Justice
Department, said that he did not know Roberts's personal feelings about
abortion. "I know he thought Roe was totally ill-reasoned and
extra-constitutional. Everyone in the department did -- we talked about
it," he said. Whether Roberts would vote to overturn Roe v. Wade
if confirmed to the Supreme Court "is another matter," Fein said, that
depends on Roberts's views on how much weight should be given to court

Laurence H. Tribe, a professor of
constitutional law at Harvard University, noted that, during the 1980s,
many liberal and conservative scholars alike believed that Roe v. Wade was a poorly reasoned decision -- "even those, like myself, who defended the outcome."

For all the talk of Roe as settled case law by liberal Democrats, the media would do well to also report that Roe is often seen by legal scholars as less than the hallmark of sound Court jurisprudence, ideological considerations aside.

Ken Shepherd
Ken Shepherd
Ken Shepherd is a writer living in New Carrollton, Md.