Republican Sen. Susan Collins Should Examine History Before Saying She ‘Would Not Support’ SCOTUS Nominee Who Shows ‘Hostility To Roe V. Wade’

Sen. Susan Collins (R-ME) arrives at the Kennedy Center for a tribute concert for Sen. Edward Kennedy (D-MA) on Mar. 8, 2009 in Washington, DC.
Photo by Brendan Hoffman/Getty Images

On Sunday, Senator Susan Collins (R-ME) appeared on CNN’s "State of the Union," where she told host Jake Tapper that she wouldn’t support a Supreme Court nominee who showed "hostility to Roe v. Wade."

I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.

Regarding a conversation she had with President Trump, she said, "I emphasized that I wanted a nominee who would respect precedent, a fundamental tenet of our judicial system."

While precedent is certainty a compelling force in American jurisprudence, it must not be understood as an impervious barrier to the reexamination of potentially erroneous case law.

The Supreme Court is not infallible. During the 19th and 20th centuries, there were multiple instances in which SCOTUS rulings were overturned — either by amendments to the Constitution, or by the Supreme Court itself at a later date.

In Dred Scott v. Sandford, the Supreme Court ruled that African Americans "could not claim U.S. citizenship, and therefore blacks were unable to petition the court for their freedom," writes History. Chief Justice Roger Taney wrote that slaves were "property," and the "right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States."

Dred Scott, which is widely cited as one of the most egregious SCOTUS decisions in U.S. history, was overruled by the 13th and 14th Amendments.

In 1883, the Supreme Court ruled in Pace v. Alabama that the punishment prescribed to an interracial couple who had been sentenced to prison for their relationship didn’t violate the 14th Amendment because it was equally enforced. The ruling was essentially overwritten by the 1967 case, Loving v. Virginia. "In a unanimous decision, the [Supreme Court] justices found that Virginia’s interracial marriage law violated the 14th Amendment to the Constitution," writes History.

After a mixed-race man named Homer Plessy was arrested for sitting in the white section of a train car in violation of Louisiana’s "Separate Car Act," the Supreme Court ruled in Plessy v. Ferguson in 1896 that the "separate but equal" doctrine didn’t violate the 14th Amendment.

Justice Henry Billings Brown wrote in the majority opinion:

The object of the [14th] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.

Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.

The "separate but equal" doctrine was overturned in 1954’s Brown v. Board of Education of Topeka, in which the Supreme Court ruled against school segregation, noting its unconstitutionality.

These are just three cases in which a Supreme Court ruling was found to be in dire need of reexamination and revision. There are plenty of others.

Renowned legal scholar John Hart Ely, an ardent supporter of abortion himself, wrote that the grounds upon which Roe v. Wade was decided were incredibly shaky:

The Court's response here is simply not adequate. It agrees, indeed it holds, that after the point of viability (a concept it fails to note will become even less clear than it is now as the technology of birth continues to develop) the interest in protecting the fetus is compelling. ...

Abortion is too much like infanticide on the one hand, and too much like contraception on the other, to leave one comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher’s hypothetical. ...

What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus' existence is unable to overcome it – a protection more stringent, I think it fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment.

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interest that legislatively prevailed over it. And that, I believe – the predictable early reaction to Roe notwithstanding ... is a charge that can reasonably be leveled at no other decision of the past twenty years.

At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking. Not in the last thirty-five years at any rate.

Other legal scholars have come to similar conclusions, including Edward Lazarus, who clerked for SCOTUS Justice Harry A. Blackmun. According to Lazarus: "What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. ..."

According to Lawrence Tribe of Harvard Law School: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

According to Kermit Roosevelt of the University of Pennsylvania: "As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional 'person' entitled to the protection of the 14th Amendment."

Finally, in the decades since the Roe decision, the scientific community has developed a much greater understanding of the way in which life begins.

Just as legal precedent didn’t act as an impenetrable barrier to progress when it came to issues affecting the African American community, it shouldn’t act as a barrier to the reexamination of a legally dubious SCOTUS decision that has, for nearly 50 years, allowed individuals to enjoy mortal authority over the life of another human being.

Sen. Collins appears to want an unmoving judiciary, citing "respect for established decisions" as the foundation for her belief — but precedent isn’t everything. Once again, history has shown that SCOTUS rulings are not infallible. In some cases, they are poorly established. If a "hostility to Roe v. Wade" is Collins’ litmus test for a SCOTUS nominee, the senator should take a look at the case history presented above, as well as the remarks from legal scholars who believe the Roe decision to be lacking substance.

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