Monday, September 20, 2021

Understanding the Criticism of Roe v. Wade

 A Decision Exemplifying the Worst of Originalism and Legal Realism

By Nathaniel Clark
Nathaniel Clark is a third-year student at Albany Law School. Prior to attending law school, he earned his bachelor's degree from the University at Albany, State University of New York, where he majored in Emergency Preparedness, Homeland Security, and Cybersecurity. Additionally, Nathaniel minored in Philosophy.
At Albany Law, Nathaniel is a member of the Albany Law Review. He has interned with the New York State Office of the Attorney General and Magistrate Judge Christian F. Hummel of the Northern District of New York. He is currently a law clerk at the law firm of O’Connell & Aronowitz, P.C.

How should a judge decide a case? It seems the most basic of questions—if it is unclear to the presiding judge how a case should be decided, it seems a fool’s errand to ask attorneys to present arguments to persuade that judge, or to expect any consistency from the rule of law. And yet, the method by which a judge should render a decision in a case is the subject of significant debate. Some theorists suggest that a judge should make his decision by looking to the original meaning of the text of the statute at issue and applying the words of the statute as they meant when written to the case at hand. Others, however, argue that the ultimate duty of a judge is to weigh “the social advantage” of the laws at issue. Naturally, this dispute over the role of the judge has led to dispute over the decisions handed down by judges.

One of the most disputed decisions handed down by a judge in the 20th century is the Supreme Court’s decision in Roe v. Wade, which identified a fundamental right to privacy and held that it encompassed a woman’s decision as to whether or not to terminate her pregnancy, with some limitations. A decision such as this, which has developed into a lightning rod case about which Supreme Court nominees and political candidates are questioned, is an interesting case study on the process of judicial decision-making. Examining the judicial theories used in such a key decision, and whether those theories were followed, gives key insight into the process by which a judge decides a case.

This paper will examine Roe through the lens of legal realism, as enumerated by Justice Oliver Wendell Holmes, Jr., and originalism, as explained by Justice Antonin Scalia, in an attempt to understand why the decision has remained divisive from a legal perspective, independent of its substantive ruling. I will argue that this divisiveness stems from the fact that it is representative of the worst of both judicial decision-making theories, as it attempts to ground its findings in history but makes an incorrect historical analysis, and it sets out to follow Holmes’ method of legal realism but goes too far in its judicial legislation.
To read the paper, open HERE.