O Judgment Thou Art Fled

Michael Gerson makes some perceptive observations in his latest Washington Post column on the debate over abortion. They include the risks of the increasing radicalization of both political parties:

Decades ago there were more pro-choice Republicans and pro-life Democrats to help blunt the partisan edge of the debate. Now, views on the topic have sorted by party and geography. The GOP has become captive to an ideology of power that often (on issues such as immigration, refugees and poverty) belies its pro-life pretenses. And many Republican state legislatures — where post-Roe legal changes will mostly play out — have become laboratories of radicalism.

the legal aspect of the SCOTUS decision, generally ignored by its critics:

Roe has always been vulnerable because it was so poorly argued. Its medical line-drawing was fundamentally arbitrary. Its legal reasoning was uncompelling, even to many liberals. “The failure to confront the issue in principled terms,” said Archibald Cox, President John F. Kennedy’s solicitor general, “leaves the opinion to read like a set of hospital rules and regulations. … Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice [Harry] Blackmun are part of the Constitution.”

The breathtaking overreach of Roe has been cited as the cause for an enduring political backlash. And one legal mind who famously did the citing was Justice Ruth Bader Ginsburg, a strong supporter of abortion rights. Speaking at the University of Chicago Law School in 2013, Ginsburg faulted Roe as being too sweeping, giving the pro-life movement “a target to aim at relentlessly.” Abortion rights, she argued, would have been more deeply rooted had they been secured more gradually, in a process including state legislatures — which in the early ’70s were moving toward liberalized abortion laws. “My criticism of Roe,” she said, “is that it seemed to have stopped the momentum that was on the side of change.”

a succinct statement of the battlespace:

Tens of millions of Americans believe abortion is a fundamental right. Tens of millions believe developing human life has moral worth and should have legal protection.

the inherent fragility of relying on weakly-argued court decisions:

In the United States, lasting legitimacy is the product of democratic consent. Rule by court diktat is written in sand, even if the tide rises only once in a half-century.

Here’s his conclusion:

For the foreseeable future, the abortion debate — with all its tragic complexities — has been returned to the realm of democracy. And there is little evidence our democracy is prepared for it.

The irony, of course, is that those who despise the decision include in their criticisms that it is undemocratic. One wonders what they mean by democracy? More on this in my next post.

9 comments… add one
  • PD Shaw Link

    I took my 14th Amendment class right after Casey was decided, and this is a brief outline of the historical approach taken in the text book (U of Chicago, Cass Sunstein co-ed.):

    After the Civil War, the Radical Reconstruction Congress enacts the 14th Amendment;
    The SCOTUS almost immediately begins eliminating or minimizing 14th Amendment protections for freedmen;
    The Lochner era begins in 1897, when the SCOTUS invalidated state laws for violating liberty of contract under the theory of substantive due process;
    The Lochner Era ends with the “Switch in Nine,” as the New Deal court triumphantly restores power to the people against laissez faire Justices hostile to to public health, safety and economic regulation;
    The Court reverses Plessy v. Ferguson, leading to the Civil Rights Act of 1964;
    The return of substantive due process in a line of cases striking down or limiting regulation of contracts for reproduction-related services;

    I laid it out like that because the text book requires students to study a number of Lochner era decisions that did not withstand the test of time, like limits on the number of hours children could work per week (60!). The Lochner era is studied to explain the modern era (the New Deal Restoration), and to ask students whether the contraception / abortion cases are qualitatively different from the Lochner era.

    I think the Roe decision tactfully avoided the hard questions and then Roe was eventually overruled by Planned Parenthood v. Casey which more or less embraced the substantive due process claim, but itself was probably marred by the fact that it was written by three somewhat antagonistic Republican justices chasing a compromise position.

  • steve Link

    I think the undemocratic complaint comes from the fact that so many of the judges were named by presidents who had fewer votes than the person they ran against.


  • Which is irrelevant. We are a nation of laws. That is the law.

    Why have a Supreme Court at all? Why have courts?

  • steve Link

    It was answering your question about what they mean by democracy and undemocratic. Yes, the law says that you can win elections with many fewer voter than the opposition but some people think this is undemocratic. Not illegal, just not democratic.


  • And, again, if the courts should reflect popular sentiment, why have courts? The very idea is that they should be technocratic rather than democratic.

  • steve Link

    Why not set the rules so that the Green Party chooses SCOTUS judges? Why have elections? Why insist that most of the time the most votes wins, change it to the most votes always loses?

    You have to deal with reality. The judges are not impartial. Politics matters. Make the majority large enough and you know ahead of the time the outcomes for important decisions.


  • You’re missing the point, steve. The point is that a Hobson’s choice is no choice at all. Again, when you have four Green Party candidates from whom to choose in the Democratic Party primary who do not represent rank-and-file views in any meaningful way, is that really democratic?

  • steve Link

    No, you just want to pretend that the justices are actually impartial. That they arent influenced by political beliefs. In positions that are determined by elections we usually have the majority win. Due to the way our laws written the party with fewer votes often wins now. That means that party gets to set policy and decide what is illegal. Also meant they got to choose SCOTUS judges, meaning they got to further their political agenda. You can say that a lot of this does not matter if Congress does its job, and I largely agree with that but again, the reality is that Congress does not. SCOTUS is just another political body, its members largely chosen by presidents who received fewer votes than their opponents.


  • I don’t think they’re political. I think they’re ideological and that’s worse. I think the objective should be that they be impartial. What we want is a less ideological SCOTUS and increasing the number of justices right up to 535 won’t accomplish that.

    You, apparently, want to pretend it will.

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