Overruling Roe by silence

October 24, 1991

In constitutional law there is a doctrine called overruling a case sub silento. It means that the Supreme Court will enunciate a certain constitutional doctrine, then begin a gradual process of restricting it until the original ruling no longer has any validity.

Perhaps the best historical example is what happened in the 1930s. Within weeks after Franklin D. Roosevelt's inauguration, Congress passed sweeping emergency measures to deal with the Great Depression. The decisions were struck down with equal swiftness by a highly conservative Supreme Court. A frustrated Roosevelt sought to "pack" the court in 1937 by expanding its membership from nine to 15. The effort failed, but the court got the message: In 1937 the justices summarily reversed course in what was called "the switch in time that saved nine." A vast array of judicial precedent was overruled sub silento.

This history now seems to be repeating in the case of Roe vs. Wade, the controversial 1973 decision which extended to women an unlimited right to obtain abortions in early pregnancy. The decision still stands, but the Supreme Court has accepted so many restrictions that the ruling has, in many parts of the country, just about lost its validity.

This week a federal appeals court upheld a new Pennsylvania law which severely restricts access to abortion. Many authorities believe that the Pennsylvania ruling will compel the Supreme Court either to uphold Roe vs. Wade, or overrule it outright.

But this is not necessarily the case. By simply refusing to review the appellate court's ruling in the Pennsylvania case, the Supreme Court could complete the process of overruling Roe vs. Wade sub silento. Moreover, President Bush wouldn't even have to endure the political firestorm that would be certain to ensue if Roe were overruled outright.

What better way for the Reagan- and Bush-appointed justices to the Supreme Court to thank their patrons for their jobs?

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