Scalia: Roe v. Wade an Example of Precedent That Can be Reversed

National   |   Steven Ertelt   |   Sep 19, 2012   |   11:28AM   |   Washington, DC

When it comes to Supreme Court decisions, the media and election officials frequently talk about long-standing precedents that become accepted jurisprudence. In their eyes, such precedents should almost never be overturned by subsequent courts.

Justice Antonin Scalia, in a new interview, says he understands and respects Supreme Court precedent but he also says the controversial Roe v. Wade case, that allowed virtually unlimited abortions, is an example of the kind of precedent the high court can and should overturn.

When asked what happens when linguistic analysis of a law conflicts with existing court decisions, Scalia said that judges cannot reinvent the wheel, particularly if precedent has been in place for a long time.

“We are textualists. We are originalists. We are not nuts,” he said.

One prominent exception to that is Roe v. Wade, the Supreme Court’s 1973 ruling that legalized abortion. He does not consider that binding precedent, he said, because it was wrong, remains controversial and is an issue better left to legislators than judges.

What’s more, the court’s subsequent decisions on abortion are based on the judge-made theory of “substantive due process,” which guarantees certain fundamental rights like privacy. It’s “utterly idiotic,” Scalia said.

Scalia frequently talks about abortion and the Supreme Court. In June, he schooled CNN host Piers Morgan during an interview when he explained to Morgan how the Constitution does not include a right to abortion.

Scalia says the theory of substantive due process in the Roe v. Wade decision makes no legal sense.

“My Court in recent years has invented what is called ‘substantive due process’ by simply saying some liberties are so important that no process would suffice to take them away.  That was the theory used in Roe v. Wade and it’s a theory that is simply a lie,” he said. “The world is divided  into substance and procedure.”

Scalia reminded Morgan that he doesn’t have public views on what should be legal but public views on what is Constitutional.



Attempting to turn the discussion against him, Morgan told Justice Scalia women didn’t have voting rights under the Constitution, as written. Scalia wouldn’t bit and said women had the same due process rights as men.

“My view is that regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it,” Scalia explained. “It leaves it up to democratic choice.  Some states prohibited it and some states didn’t.  What Roe vs. Wade said was that no state can prohibit it.  That is simply not in the Constitution.”