September 15, 2008

Whither Roe?; Whoopi on Constitutionalism

For someone who frets that the fate of Roe v. Wade is "hanging in the balance" in the 2008 election, liberal law professor and potential Obama Supreme Court pick Cass Sunstein was unusually candid in his Boston Globe op-ed yesterday:

"Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents. Moreover, it ruled far too broadly. … It is no wonder that millions of Americans felt, and continue to feel, that the court refused to treat their moral convictions with respect."
But, predictably, Sunstein goes on to conclude that "Roe v. Wade has been established law for 35 years; the right to choose is now a part of our culture. A decision to overrule it would … disrupt and polarize the nation."

As Radford University Professor Matthew Franck notes in response, Sunstein’s argument is a classic example of the "ratchet racket," the seeming belief of liberal jurists and scholars that, while precedent can be ignored when moving constitutional law to the left, the resulting new precedent is inviolable. Franck also reminds us that the landmark, segregation-busting Brown v. Board decision overturned a 58 year old precedent.

In his September 13 National Journal column, Stuart Taylor reaches a very different conclusion than Sunstein regarding the precariousness of Roe v. Wade. Taylor, who "lean[s] to the abortion-rights side of the policy debate," believes that "McCain could get Roe overturned only if an improbable chain of events were to unfold."

We agree with Taylor that "it is unclear whether Roberts and Alito, although undoubtedly conservative, will ever join the campaign by Justices Antonin Scalia and Clarence Thomas to overrule Roe." A narrowing of the decision is far more likely. Professor Sunstein can rest assured that, unlike the justices that gave us Roe v. Wade, Roberts and Alito will continue to take a modest approach to tinkering with the current state of the law.

Given the common misconception that Roe is all that stands between American women and the Dark Ages of "back-alley" abortions, Taylor’s most important point may well be that
"Even if the Court were to overrule Roe, that would not make abortion illegal. It would merely give states the option of banning or severely restricting abortion. Most would not do so. And women in anti-abortion states would remain free to get abortions elsewhere."
As CFJ Executive Director Curt Levey explained in a November 2006 op-ed, Taylor’s point is strongly supported by the fate of several ballot initiatives that fall. Noting that "[a]bortion restrictions were defeated in South Dakota, Oregon, and California, and voters approved a stem-cell-research measure in Missouri," Levey concluded that
"The election results in these four states give us a good indication of what abortion law may look like after Roe’s demise. … In blue states, the legal regime will be virtually unchanged from the heyday of Roe. In moderately red states, compromises between pro-life and pro-choice voters will develop. And, in a handful of very red states, substantial restrictions on abortion will be softened by a number of exceptions."

It’s a bit of an intellectual leap from Sunstein, Taylor and Franck to Whoopi Goldberg, but that didn’t stop her from weighing in on constitutional interpretation during John McCain’s appearance on The View on Friday. A discussion of McCain’s views on Roe v. Wade led to the following exchange:
Goldberg: Did you say you wanted strict constitutionalists because that … (interrupted)

McCain: No, I want people who interpret the Constitution of the United States the way our founding fathers envisioned for them to do.

Goldberg: Should I be worried about being a slave, about being returned to slavery because certain things happened in the Constitution that you had to change?
Whoopi’s remarks might be humorous were it not for the fact that they are an instance – albeit an extreme one – of another common misconception, namely that progress under the law for the oppressed has come through the "living Constitution" – that is, judicial activism.

What rescued this nation from the ages of slavery and Jim Crow is not a judiciary that imposed its values and social theories on the law. Instead, democratically-enacted constitutional amendments and legislation – and the court decisions that have faithfully enforced them – are responsible for all of the landmark civil rights gains for minorities, women, and the disabled in American history. Judicial activism’s most notable "contribution" to civil rights law was the notorious Dred Scott decision, which discovered a constitutional right to own slaves and should forever serve as an awful reminder of the dangers of allowing judges to creatively interpret the Constitution.