Finally, given that Roe and Heller employ such strikingly similar methodologies—relying on contested premises to create a new substantive right and to strike down a legislative act on a sensitive social issue—it is remarkable that no Justice in Heller even mentions Roe. Why, given the parallels between the two cases, is Heller so silent on Roe? I believe it is because once the comparisons to Roe begin, the inconsistencies in the approach of both conservatives and liberals on the Court become undeniable. For decades, conservatives and liberals have held just the opposite view on the relative capacities of courts and legislatures; in Heller, both contingents wheeled about to march in the opposite direction, with no explanation for the change in course. Conservatives may argue that turnabout is fair play. But their role as judges requires them to explain why guns and abortions belong in separate boxes, and why a methodology so unacceptable in one context is so appealing in another. There is no good answer to these questions. Once the similarities between Roe and Heller become apparent, the Court’s silence on Roe becomes deafening.
(J. Harvie Wilkinson III, "Of Guns, Abortions, and the Unraveling Rule of Law," Virginia Law Review 95 [April 2009]: 253-323, at 304)
Note from KBJ: Judge Wilkinson is my newest hero.
