A Practical (Non Academic) Review of the Supreme Court’s Political Role: Roe v. Wade Revisited … and a New Definition of the ‘Right to Choose’


Supreme Court nominations have been much in the news, let me join the discussion with propositions on: The role of the Court in our political system; critical qualifications for the Court’s intellectual leadership; the ideal make up of the Court’s membership as a whole, with emphasis on diversity; the critical need for open-minds and genuine independence; a warning to the so-called Originalists (‘Be careful what you wish for.’); and, finally, a discussion (inevitable in today’s environment) of Roe v. Wade,[1]  as confined by Gonzales v. Carhart.[2]

I am fortunate to be able to discuss and refer to a recent and elegant short work by Justice Stephen Breyer, Active Liberty.  Breyer brings some important credentials to the discussion, the most important being, of course, that he is a currently a sitting Justice.  From my standpoint, his academic history is particularly relevant … although his principal interest as a tenured law professor was in the administrative law area, reflecting experience as a legislative aide to Senator Edward Kennedy. I mean to use Breyer’s text in several different ways because it illustrates, informs and illuminates several of the points, including the central point, I am trying to make in this material.

In the process of advancing my case, I hope to examine the “metrics” of the Court as an institution, including the desired qualifications of the nominees, the Court’s role in our political system, the appropriateness of what I will call the ‘Ginsberg Constraint” on the nominating process; the Court as a genuinely independent institution … and, finally, all this coming together in an analysis of the issues posed by the upcoming reconsideration of Roe v. Wade.  (By “metrics” I mean the newly popular label encompassing all the facts and circumstances comprising a phenomenon, event, or specific tangible or intangible thing … stripped of cant, myth, spin, bias, i.e., what really is the thing, considering the whole and all its constituent parts.)

My qualifications: a Supreme Court law clerk; a practicing lawyer; a Bar Association president; a sub-cabinet appointee on the federal, state and (as outside counsel) city level; an “acting,” “adjunct” and “courtesy” (no pay) professor at prominent law and business schools; an inveterate author of legal (albeit non-constitutional) text books; a small business founder … as well as an aspiring, and largely unsuccessful, playwright; an aging rugby player; and a former platoon leader.  My deficiency, readily admitted, is that I am not remotely a scholar in the area of constitutional law and history.

Sloganeering: the Antithesis of Reason and Analysis

A preliminary note.  It is unfortunate that conventional Supreme Court debate is infected with a surplus of code words, slogans and labels largely devoid of substantive meaning but designed to trigger an emotional response from the audience.

Witness the labels which appear repeatedly in many of the standard texts on constitutional law and Supreme Court practice … and even more frequently in campaign rhetoric and overheated media slugfests. ‘Activist Judges;’ the ‘Originalist Theory;’ of Constitutional Interpretation; ‘Judicial Restraint;’ ‘Judicial Modesty;’ ‘Subjective vs. Objective Judging;’ ‘Neutral Principles;’ ‘Traditional Jurisprudence;’ ‘Interpretivism;’ ‘Texualist;’ ‘Literalist;’ ‘Modern Liberty;’ ‘Active Liberty;’ the ‘Balancing Test.’  The list could go on almost indefinitely.  Each of the foregoing, plus many others, have masqueraded as “reasoned” theories of constitutional jurisprudence.  Indeed, they have been applied both on the offense and on the defense.  If someone claims that he or she is an ‘Originalist’ in approaching the text of Constitution, that can mark the speaker (depending on the audience) with either credit or blame.  My point, shared by many other critics, is that buzz words, standing alone, are not useful definitions.  They are only slogans, and, like most slogans, contain, standing alone, little information.  Even Breyer’s thesis, Active Liberty obviously doesn’t do much to guide, of and by itself, either a judge or her critics … until he has (as Breyer has) illustrated what she means.  Thus, the conservatives are quick to criticize “Activist Judges” as if that word had contextual significance; it does not.  Any judge who renders an opinion and decides a case is ‘activist’ because he or she elects to vote one way or the other on the issue.  Scalia and Thomas, the current heroes of the conservative wing, are the ultimate “activists” in that they have a record of overturning Congressional action which far exceeds, statistically, the actions of the so-called Liberal (a/k/a “Activist”) Wing.  My point at this stage is that a word or a phrase is close to meaningless when viewed in isolation.  To beat this horse to death, Liberals and Conservatives readily agree that the founders had in mind establishing a “democracy” in the United States and that the Supreme Court’s decision should, accordingly, promote democracy.  Breyer says as much on several occasions.  However, apparently to the surprise of the current Administration, “democracy,” as a word standing by itself, does not necessarily mean what they thought it meant.  Witness democracy in action in the Middle East.[3]

All this is a long winded way of saying that, if one is writing about how the Supreme Court nominees should be selected and the cases decided, one or two labels won’t do the trick. They may indicate a propensity but, standing alone, they are not sufficient either to explain the intent of the writer or serve as a headline for a judge to follow.  When you start talking about ‘activism,’ versus, I suppose, its antonym … passivity … the best reference is Humpty Dumpty’s dictum that words mean what the speaker wants them to mean; after all, who is to be the master, as Humpty Dumpty said, “I or the word.”

The “Originalist” Convention:

Having rejected code words as simplistic propaganda, nonetheless any analysis necessarily deals with the so-called ‘interpretivest” cum “originalist” conception of Supreme Court jurisprudence, as championed on today’s Court by Justice Scalia.  In that discussion, I need do little more than stand on the shoulders of giants … e.g., John Hart Ely writing in Democracy and Distrust and, quite recently, Breyer.

“Textualism.” it has been argued, searches for “meaning … in structure.” It means “preferring the language and structure of the law whenever possible over its legislative history and imputed values.”  It asks judges to avoid invocation of vague or broad statutory purposes and, instead, to consider such purposes at “lower levels of generality.”  It hopes, thereby, to reduce the risk that judges will interpret statutes subjectively, substituting their own ideas of what is “good” for those of Congress and/or the Founding Fathers.  Judges must display that doubt, caution and prudence, that modesty which entails not being ‘too sure’ of one-self, which Learned Hand described as “… the spirit of liberty.”

The problem, of course, is apparent: Breyer points out the ‘Textualist,’ ‘Originalist,’ and ‘Literalist,’ approaches themselves are defined by inherently subjective elements.  He asks the obvious: “Which linguistic characteristics are determinative; which canon shall we choose; which historical account shall we use; which tradition shall we apply and how does that history, or that tradition, apply now?”  As Ely points out:

“Strict constructionism” is a term that certainly might be used to designate something like interpretivism; unfortunately it has been used more often, perhaps most notably in recent years by President Nixon, to signal a quite different thing, a proclivity to reach constitutional judgments that will please political conservatives.”[4]

In my view, ‘Originalism’ is verbal camouflage, empty sloganeering, bereft of intellectual integrity … “tastes great … less filling.”  The Constitution in the Originalist sense is akin to the Bible in that, as someone once said, “if the Bible is your gun, you can load any caliber of ammunition you want and point it in any direction you elect.”  Earl Warren liked to quote Stanley Reed as letting slip the awful truth: after all the legal research, historical inquiries (from the Federalist Papers on), analysis by leading academics, “You still come out the way you wanted to in the first place.”[5]

In fact, as Ely points out, if one were to interpret the Constitution “literally” as Scalia, Thomas, et al. purport to do, the Liberal Wing of the Court would have a field day.  Were it not for limitations imposed by the 1873 Slaughter-House cases, an “activist” decision of the Court which read plain language out of the Constitution, “liberal” judges would have a free rein to be as activist (i.e. enforcing all sorts of human rights) as they wished.  All they would have to do is read, literally and originally, that clause in the Fourteenth Amendment which states that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  Thus, construing, as Originalists are wont to do, the legislative history of the clause as presented by Senator Howard, a principal Senate proponent,[6] Ely points out:

“… [the] clause at face value [is] a delegation to future constitutional decision-makers to protect rights that are not listed either in the Fourteenth Amendment or elsewhere in the document. Rather than using a restrictive enumeration of rights, as they had, for example, in the Civil Rights Act of 1866, the framers opted to protect ‘the privileges or immunities of the United States citizens.’ In fact, Howard was ‘frank to say that only the future could tell just what application the privileges and immunities provision might have.’ … Thus there were few citations of specific purpose that went beyond the coverage of the Civil Rights Act. But there was at the same time ‘an awareness on the part of these framers that it was a constitution they were writing, which led to a choice of language capable of growth.” (Emphasis added, footnotes omitted.)

What a picnic “originalist” liberal justices might have if free to apply the Fourteenth Amendment on the basis of an understanding, from the legislative history, that: “only the future will tell just what application the privileges and immunities provisions might have.”[7] I will return to this point when discussing Roe v. Wade.

The Court and Contemporary Politics

Akin to the Originalist abstraction is the assertion that the Supreme Court is somehow ‘above politics,’ meaning contemporary politics.  That proposition, widely admired, admittedly has a nice ring to it, a variation of the Originalist Thesis, ‘Above politics,’ equates Constitutional jurisprudence with the chore in front of nisi prius judges faced with the responsibility of interpreting a written contract in the context of a dispute between the contracting parties.  An unanticipated event has occurred, the parties cannot agree on the meaning and application of the contract language; the judiciary is charged with the simple duty of divining the original intent of the parties, considering the history of the negotiations and any other admissible parol evidence as to what the parties would have provided had the subsequent event been on their screens when the contract was drafted.  Once a judge has reached a conclusion on that point, then the case is over (leaving aside those infrequent instances where public policy trumps the perceived agreement of the parties).  If the Court, as in O’Connor’s opinion in Lawrence v. Texas[8]  (invalidating Texas’ criminalization of sodomy), takes into account contemporary cultural mores, the Scalias of this world fume: The Court is infringing the legislature’s prerogatives.  It is up to the elected legislature, State-by-State, to express the view of “many” Americans … that “homosexuality … [is] morally repugnant, not out of hatred, but rather in the same way they view other harmful conduct” – ‘murder, for example, polygamy, or cruelty to animals’[9] – as immoral.”[10]

My thesis is that Ely, Breyer, et al. are correct, and Scalia et al., are dead wrong, in one critical respect.  The Court cannot discharge its primary and most important … indeed vital … function unless its decisions are founded on a profound and elegant understanding of contemporary political realities in the United States.  The original intent of the Founders is, of course, relevant as is “our Nation’s history and tradition”[11] but the Court cannot discharge what I label Obligation Number One by checking, and only checking, the rear view mirror.

I am not, of course, urging that, with the Originalist doctrine exposed as camouflage for political conservatism, the Court is free to run amok … or, as Ely puts it, to reach for results which restrain behavior “a majority of the justices regard as uncivilized.” Rather, I agree there is a core political responsibility with which the Supreme Court is charged in our constitutional system.

Obligation Number One: To Help Keep The Ship of State Afloat When Its Companion Branches Have Broken Down

The earlier diktat, that the Supreme Court is “above politics,” is mischievous in its mind-deadening over-simplicity.  Maybe the speaker means that the Justices should hew to higher-minded standards than the low life swine on the floor of the House of Representatives.  If so, all public servants should be ‘above politics’ … a platitude.  If, on the other hand, the idea is that the Justices, strict constructionists all, should uncover ‘Neutral Principles of Natural Law’ in an atmosphere which takes no account of political realities in the U.S., the statement is nonsense, in my view.  The fact is that the Court is an institution which forms a vital part of our political system, by definition a political institution with political functions.  And its assigned function, like any court, including particularly a court of last resort, is to settle disputes – most importantly political disputes about the meaning and application of legislation and the Constitution.  In going about their business, the Justices have a variety of considerations to keep in mind … including, like all public servants, the preservation of tranquility in the body politic … to keep the peace.  Thus, while the Court votes only on specific cases and controversies, its decisions are so cast (to the extent possible) as to settle the controversy once and for all.  (This is one of the meanings of the phrase stare decisis.) There is little to be gained in revisiting all the old issues again and again in each Term in hopes that a membership change will alter an earlier result; our energies as citizens would be drained by an endless, Faluja-type guerilla war on every issue within the Court’s jurisdiction.

The above is, of course, a routine and obvious description, repeated here as a lead in to my foundation premise.  The Court, because of its unique powers and procedures, has responsibility to step in and maintain order when the other organs of government have broken down.  This is the  central point, the Court’s ‘core” responsibility – best understood by the overpowering genius of Earl Warren … a talent consistently missed by academic critics (and several Justices).

Warren understood the Court’s central function was not so much to write opinions which satisfy constitutional scholars as, rather, to resolve difficult disputes, in many cases disputes which, if left unresolved, might threaten the fabric of our society.  In our tripartite system of government, the legislative and executive branches have primary responsibility for resolving political issues; as elected officials, they are, at least purportedly, directly responsible to the people.  Warren, a long time elected official (as none of the current incumbents have been) understood that it is precisely at the point when those systems threaten to break down, for one reason or another, that the Supreme Court earns its pay, putting the controversy to rest.  Were it not for the Court’s authority, and its willingness to act, the problem could spill over into the private arena, where the only alternative for the contending parties would be a form of self help, which has often meant (throughout history) violence and anarchy.  Thus, the Number One Obligation is not, as Scalia would have it, to usurp the authority of the legislature but to step in when the legislature, and the executive, have lost their grip.  The Number One Obligation is, in a sense, secondary … the Court as the backstop in case the pitcher, the Congress for example, cannot find the plate.  When things fall apart the Number One Obligation is to try and put them back together, and the Court plays its role whenever it is the last and best agency empowered to apply wisdom and authority … to spot the crisis and defuse it.  In that sense, I incorporate Breyer’s conception of Active Liberty as founded on the thesis that the Court has to be concerned with the “consequences” of the decisions, seemingly an obvious point which is however lost when a “non-activist, Originalist argues that the text of the Constitution speaks for itself, immutably in all circumstances and the job of the Court is simply act as a megaphone.

Now to the hard part … to put meat on the bones of the premise.  Sure, you might say, the Court resolves disputes.  That’s its job, an obvious remark.  And, if there is first, a crisis of some sort which threatens our political system, who can gainsay the proposition that the Court, when called on, should try to fix things.

The way to give substance to my argument is to focus on specifics … analyzing the Court’s legitimacy as an actor, the definitive option in my view, in our ongoing  political drama in the context of the three seminal cases decided by the Post-War Supreme Court – Brown v. Board of Education, Baker v. Carr and Reynolds v. Simms.

The thread starts, of course, with the Brown decision.  The Warren Court’s election to outlaw school segregation is, of course, a profound moral statement.  It defines much of what we say and think about the Constitution in the Post-War period.  However, it should be read as a political statement as well, and read in connection with the subsequent “one-man, one-vote” decisions.  What Earl Warren perceived when he came on the bench in the early 1950s was a breakdown in our political institutions.  By reason of corrupt weighted voting which enshrined conservative rural legislators, responsible only to a handful of like-minded constituents, in both the State and Federal legislatures, the political process had become dangerously stalled.  Post-War public opinion had moved well beyond official apartheid.  However, the government had been unable to catch up with the people.  Eisenhower’s heart was not in the Civil Rights movement and the Congress was neutered by the power of Southern Senators and Representatives, enjoying de facto life tenure through a corrupt voting system in their States and using the seniority system to control the legislative agenda.

Thus, the first and most obvious chore Warren faced was to overturn the doctrine of “separate but equal” because nobody else in the Federal government was going to act in time.  And, he perceived (correctly, in my opinion) that he needed to reverse long standing precedents with a unanimous decision of the Supreme Court.  That meant he had to get Black, and more particularly Reed, to go along.  As anyone who has spent much time observing the Court from the inside should know by now, an opinion which is massaged in order to “get a Court” is rarely a model of academically admired reasoning.  Warren needed an opinion which did something other than accuse Reed’s relatives and friends (and Black’s as well) of behaving like monsters in the hundred years since Appomattox.  As far as the niceties are concerned (deference to Constitutional history, prior case authority and academic opinion), the drafts of most of the Chief’s opinions were written by his law clerks, all of whom were top graduates of the top law schools with sky scraping grades in Constitutional Law.  In Brown, however, the important issue was not to impress academia but to get all nine votes in favor.  This the Chief undertook himself and achieved.

The next chore was to see that the decree was enforced … but not, he realized, through the Court’s decrees as the primary moving force.  That was not going to work, in the Chief’s judgment, and I submit he was quite right.  What Brown was able to provide was ‘air cover’ for an emerging group of Senators and Congressmen, Jack Kennedy and particularly Lyndon Johnson among them, who could use the decision to break the legislative log jam and pass legislation with the full weight of the Congress behind it, ending apartheid de jure and de facto.  Paraphrasing to himself (we assume) Stalin’s remark about the Pope’s lack of ‘divisions,’ Warren knew that the Court did not have much of an Army, and no Navy and Air Force.  What the Court could do was enable the Lyndon Johnsons of this world to go around the country, and particularly in the South, and say something like the following.  “Waal, Ah agree with yoall that sending yoah little children to school with them Blacks don’t make no sense … but it is The Law of the Land!” I doubt very much whether Warren and Johnson ever had an explicit conversation on the subject; but superb politicians like the two of them knew how to communicate without actually picking up the phone.

Post Brown, as the Chief also well understood, the Court’s job was not finished; it had more hard work in front of it.  Air cover or no, Johnson, McCormick, Rayburn, et al., could not be truly effective, given the Southern stranglehold on the key chairs in the House and Senate (e.g., Judge Smith).  Hence, a very quiet and unannounced determination to break that stifling impasse.  We say ‘quiet’ because I wrote the initial memorandum to the Chief on Baker v. Carr and had several conversations with him on the subject; he was uncharacteristically non-committal … the notion of ‘one-man, one-vote’ did not surface until Reynolds v. Sims, four years later.  But the strategy, in hindsight, is obvious.  Once Blacks were allowed to vote throughout the South, all the political equations would change.  The epiphany and, in my view, the natural and designed result of the Chief’s efforts beginning in 1954, was the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Twenty Fourth Amendment.

The point is that what happened was all part of a sophisticated and elegant design, the design of an extraordinary man who was not only a great judge but a great politician.  He got the unanimous vote.  He did not try to throw the Court into the cauldron of attempting immediately to enforce its own decree … a potential embarrassment if the Court overreached itself and was made to look powerless.  He saw the Court, and rightly so, as the catalyst which would enable the legislature (the proper organ for resolving the issue in the final analysis) to exercise its constitutional function, free at last to respond to the popular call.

The Warren Court’s controversial criminal justice decisions are part of the same overall picture … the Court fixing a situation which was crippled by corruption and counterproductive brutality.  The background is important.  In the 50s and 60s, crime, particularly violent street crime, was increasing exponentially and the criminal justice system appeared to be outgunned (literally and figuratively).  Drugs, particularly crack cocaine, were popular.  New York was on its way to Fort Apache.  Police on the street seemed unable to cope.  The Rockefeller laws, draconian as they were, didn’t do much good.   And, the demographics seemed dire … more young people equals more murders, more muggings.  The cops seemed powerless … often corrupt, routinely brutal and accordingly despised in the very communities they were assigned to police.  Governors and legislators were supine and worse … ‘lock `em up and throw away the key’ was the limit of principled discussion.  Note, if you will, that Warren was (and indeed still remains) that Justice with the greatest pre-appointment experience in law enforcement.  He started his career as a crusading prosecutor in Alameda County (Jack London’s bailiwick and historically a rough community); he put the Sheriff in jail, along with a number of the Sheriff’s co-conspirators, feats which gained him recognition, particularly in conservative circles, as the outstanding district attorney in the country in those days.  What he took from that experience was a central proposition … a proposition which was almost entirely overlooked by narrow minded (on this issue) legislators, and, to be sure, their constituents.  The public order suffers, of course, when crime is on the increase and the Supreme Court is the ultimate defender of public order.  As we have suggested, that is a principal reason the Justices draw a salary from the public treasury.  However, and here is Warren’s gifted insight, a society is inherently lawless if the people who are appointed to enforce the laws are themselves law breakers.  (See Mexico, for example.) If the police do not follow the letter of the law in apprehending criminals, then the entire system breaks down.  To the confusion of many, the remedy phase of the criminal justice decisions under Chief Justice Warren’s supervision landed squarely on the necks of corrupt, brutal and lawless police officers and departments, people who hitherto had felt they were entitled to deem themselves rid of ‘technical’ niceties in pursuit of some ‘higher’ goal.  That was the attitude that the Chief went after, and to lasting effect.  The criminal justice system had broken down … not because the cops were not tough enough, the popular surmise, but because they were illegally tough … lawless, which in turn bred lawlessness.

Again, it is all part of the package (in our opinion) resulting from his exquisite understanding of what the Supreme Court is supposed to do … to conceive of the law in a longheaded (Nixon’s adjective, I think) fashion, to educate the public so that the other branches of government at last become educated, to remedy cancerous injustice in a way that, sooner or later, has a sufficient positive social effect and the decision becomes an accepted element of our legal canon.  To put it mildly, the Chief’s strategy took a while to sink in; ignorant yahoos in the other branches routinely called for his scalp.  But we can only be grateful it did.  Take a look at New York City, for example.  A plunging crime rate has many causes, but the sine qua non was, without doubt, the clean up of the NYPD … stop taking bribes, faking the evidence and brutalizing minorities.  Result: the cops get the necessary respect … and information and assistance where it counts … in the “hoods.”

To cite a companion example, Warren understood that, in any number of criminal cases, given a poor and ignorant defendant and unchecked coercive interrogation by law enforcement, the least reliable piece of evidence is a confession.  At that time, the police (and the press and public) were shocked and outraged by Warren’s thesis, “You mean you’re throwing out a confession?  Impeach the bum.” Now, acceptance of Miranda et al., is one-hundred percent.  And, and here we return to the “core” obligation.  With the Court pointing the way, the police had, at last, to obey the law.  Once that happened, the authority of the police in the community was restored; breakdown fixed; case (at least temporarily) closed.

Down to Business: Necessary First Steps On the Way to Resolving Roe

All the advice and briefing and argument of the analysts, including this one, will likely be of no consequence whatsoever unless the appointment process is reformed so that the men and women appointed to the Court are capable of sifting, absorbing and evaluating the various positions on the road to reaching a result which satisfies the Court’s Number One Obligation.   There is not much that can be done about the current make up of the Court, of course.  The following two principles can therefore be dismissed as utopian.  That said, the principles rest on policy imperatives which now are widely accepted as inherent in appointment/hiring processes in this country and in mature democracies around the world … appointments should be based on merit, not politics; and the appointing authority should recognize the value of diversity.

The First Step: Meaningful Diversity

Let’s take the issue of diversity first:  As an essential qualifier of the following discussion, I am giving the term “diversity” a quite special and customized definition.  Without arguing with the notion that diversity typically means wrestling with the legacies of gender, race, ethic and religious discrimination, my focus is on diverse backgrounds which will help the Court as an institution, a body of nine individuals, reach what I label the Enlightened Result … the result which a polymath such as Earl Warren was able to lead the Court into reaching in the 50s and 60s.  If this appears to be overly nostalgic, I am not apologetic.  The “diversity” exemplified by the membership of the Warren Court, in my view, speaks for itself … a diversity which enabled the Court to reach Enlightened Results in a series of very difficult cases, results which would not have been reached had the Court not enjoyed the type of diversity I am talking about.  Let me explain:

In thinking on the qualifications of the nine men and women who sit on the Supreme Court, commentators tend to overlook a significant and quite obvious fact of life.  In the performance of their jobs, the Justices are insulated from exposure, at least in large part, to what can be abbreviated for this purpose as the “real world.” Discussions by a Justice concerning the subject matter of a case currently before or on its way the Court is confined to a small circle of people … the other Justices, law clerks and, in the open courtroom, the advocates themselves.  It is clearly improper for any outside individual or group to attempt to contact one or more of the Justices extramurally.  The Justices, of course, read the popular press watch television and maybe even listen to Talk Radio … and so pick up the way the wind is blowing, at least as interpreted by the media.  But as far as the give and take which occurs in, for example, a town meeting; a campaign debate; on the floor of the legislature; inside the executive mansion; in a barroom or wherever else the views of the non-chattering classes, i.e., the ‘real people are expressed … once on the Court, the Justices are largely walled off from those exposures.  Case in Point.  An enormously gregarious man like Earl Warren often lamented the fact that he picked up the tidal currents of public opinion only through the newspapers. Thus, the three of us, his law clerks, spent every Saturday (with rare exceptions) in the company of the Chief, starting with a pre-luncheon cocktail and going well into the late afternoon. We would talk about any and all subjects under the Sun, back and forth … his opinion, our opinions. It is not that any of Jesse, Murray or I were particularly well informed or attuned to the passing scene. The fact is we were the only legal confidants he had … and, therefore, he used us as such.

With this background, let me address the issue of “diversity” in a context quite different than that in which the word conventionally appears, using Q&A for the purpose:

Question: What are the ideal qualifications for a Supreme Court nominee?

Answer: That’s easy. An open mind. [More of this later; ed.]

Question: O.K.   What is the ideal make up of the Court?

Answer: That’s easy … diversity.

Question: You mean women, Blacks, Jews?

Answer: I mean real world experience in the subject areas of the Court’s jurisdiction … the ability to bring to the collective decision making process, including the weekly Conference, a first hand picture of how the world works outside the Courtroom.  I mean individuals with a mature and far reaching understanding of the political climate in the United States as it then exists and the directions to which this country is likely to, and should, head. The ideal candidate has a global understanding of what it takes for these United States to function effectively as a constitutional Republic, including hands-on, ‘down and dirty,’ ‘been there, done that’ experience with United States political life in at least one of the executive or the legislative branches … federal or State. The Court’s function, as envisaged by the founders and (of equal importance) as required by the exigencies of life in the United States and in the world, goes far beyond the reductionist intellectuality which many academic purists  appear, as I read them, to admire … ignoring what I submit is the heart of the matter.

Question: If your thought is that the Court can use members who have “been there, done that,” in terms of professional responsibilities and exposure, what do you consider the areas and issues you want covered?

Answer: Try the following list of critical issues which are typically those with the widest ramifications and highest degree of sensitivity on the Court’s agenda.

  1. Overseeing the exercise of Presidential power
  2. Patrolling State executive and administrative actions
  3. Overseeing the operations of the U.S. financial markets, preserving the integrity of our capital markets and reviewing federal agency; g. the SEC’s, decisions
  4. Interpreting Congressional legislation … for example, how to wade through legislative history a/k/a self serving statements in Committee Reports and on the floor
  5. Reviewing the decisions of State courts in civil and criminal cases
  6. Policing the decisions of the lower Federal courts (including bringing maverick Circuits to heel)
  7. Reviewing the conduct of law enforcement officers, viz:
    1. District attorneys and police
    2. State attorneys general
  • The U.S. Justice Department and the FBI
  1. Applying elegant scholarship to the Constitutional text
  2. Understanding a variety of practical commercial and business issues as confronted in private law practice, including: anti-trust; land use; employer/employee; tax; intellectual property

Question: Conceding your point, if you had nine spots to fill, how would you do it?

Answer: Easy: I’d pick the following:

  1. A world-class constitutional scholar.
  2. A ‘law and order’ district attorney.
  3. A senior partner in a private law firm handling complex civil cases, including Supreme Court advocacy.
  4. A former chairman of the SEC.
  5. An elected politician … g., a U.S. Senator.
  6. A State attorney general.
  7. A U.S. attorney general.
  8. An outstanding Federal judge.
  9. An outstanding State judge.
  10. A Presidential confidant.
  11. A governor.

The list could go on, of course, but you get the idea.

Question: The two lists both total 11 items.  By design?

Answer: Keep asking and you’ll see.

Question: Does the current Court qualify?

Answer: Hardly. With obvious, but few, exceptions, “little gray mice” in Herb Brownell’s phrase … largely lower court federal judges, folks whose work experience extends not much farther than the “judicial monastery.”

Question: How about Miers?

Answer: Well, she would have passed on two counts …” 3. A senior partner in a law firm handling complex cases, including Supreme Court advocacy” and “10. A Presidential confidant.”

Question: Your standard is utopian. No Court can qualify

Answer: The one I clerked on did, viz 1: Frankfurter; 2: Warren; 3: Harlan; 4: Douglas; 5: Black; 6: Warren; 7: Clark; 8: Stewart; 9: Brennan; 10: Frankfurter; 11: Warren.

Question: You seem to think the Court should be ‘activist,’ vide Earl Warren.

Answer: The Court has to act.

Question: A quibble.

Answer: The Court is likely to be to be on sounder ground when and if the members are informed by diverse viewpoints, in turn based on real world experience.  If the Justices are culled from top tier pros … e.g. former Senators, AGs, managing partners, governors, Hall of Fame academics … that collective body of experience can help the Court as an institution more profoundly deal with its role as this country’s lifeguard, the Number One Obligation, when our other political organs ossify into impotence … full of sound and fury, signifying nothing.

A Story of Two Quotes

First, an “Upshot” article by Dave Leonhardt on the case challenging the Affordable Care Act before the Supreme Court, entitled “A Polarized Court Weighs a Reversal of the Safety Net.”[12]

The quote reads:

“ the justices often vote much the way the presidents who appointed them and senators who supported them would hope. Presidents now choose justices with greater focus on their ideology. The justices’ clerks emerge from competing networks, working for think tanks, law professors and lower-court judges linked to one party or the other.

No wonder that the current court is the first one in American history in which close, major cases regularly feature all of the Democratic appointees and all of the Republican ones on opposite sides.”

The second quote from an article by the Legend, a/k/a yours truly, on the subject from a piece available online at [TBA].

The Appointment Process:  No More ‘Politics As Usual’

This subsection suggests obviously an internal contradiction.  The first appointment principle I am suggesting is bottomed on the idea that at least some of the Justices need a sensitive and sophisticated understanding of political realities.  In this context, however, I am using politics in a different sense.  That is to say again at the risk of seeming nostalgic (and again I am not apologetic) I urge that we return to the processes in effect prior to the current era.  Thus, without performing detailed research, my memory is that Bill Brennan was the first Supreme Court nominee to appear before the Judiciary Committee of the Senate and engage in a discussion of his credentials … an unnecessary discussion as his credentials were obvious in the terms I have set out as appropriate criteria.

To illustrate what I mean by “No More Politics As Usual,” let me cite Senator Barbara Boxer’s statements on the eve of the Miers hearings (which, of course, did not occur) … deplorable, albeit typical:

“She doesn’t bring stellar experience to the job.  That’s a fact. That’s not a disqualifier in my mind.  What is a disqualifier is if I can’t find out what the heck she will do.  With her we have a blank slate.  We need to demand information.”  (Emphasis added.)

What’s wrong with that statement?  First, if Miers was to have been any kind of a judge, she herself did not know … indeed, she should not have known … how she would have voted on a case which had not yet reached the Court.  And, if Miers had already made up her mind (so that she could have told Boxer) before she had the benefit of (i) the decision below; (ii) the opposing briefs; (iii) oral argument; (iv) the research produced by her law clerks; (v) the discussion in the weekly Conference of the Justices; and (vi) the language and rationale of the majority and minority draft opinions, she should have, ethically and morally, disqualified herself.  How can anyone claim to be a “judge” if he or she has already voted, in his or her own mind, before the case is briefed and argued? The primary characteristic of a judge is an open mind.

To be sure, any individual with a record sufficiently accomplished to qualify his or her for Court membership is often on record on the hot issues of the day.  However, the fact, which gets little press, is that positions taken on constitutional issues during the course of the Committee hearings are different in kind and quality than positions taken in other contexts.  The Committee, by the very fact of its existence (and the Committee members, by the way their questions are phrased) are looking for statements in the nature of promises.  If we say, in a paper published by the Harvard Law Review, we think Roe v. Wade should be overturned, we are perfectly free at some later date to vote in the other direction because we have changed our mind on the issue.  There is no embarrassment … “a foolish consistency is the hobgoblin of little minds.” If, however, in the course of our confirmation hearings, we take that position, then we are stuck with it.  If we later reverse ourselves, we will have to defend against the charge we procured the nomination under false pretenses, lulling the Senate into thinking we are going one way and then actually going another.  In short, I respect the impeccable Ruth Ginsburg’s refusal to vote, in effect, on future cases in the course of her hearings.

Indeed, the notion that judges should be committed to a particular political program is, we think, totally offside if one views the independence of the judiciary as one of our principal constitutional bulwarks.  To be sure, it is impossible to shut the eyes of the President and his advisers to the record of an individual when considering an initial appointment to the bench or elevation to a higher court.  However, an open and flagrant requirement that the judge indicate in advance how he or she will vote on a specified issue is a subversion, in our view, of ordered liberty and we deplore it … as have a lot of the commentators, although to little avail it would seem.

Senator Boxer was not, of course, alone in her thinking.  The underlying notion is that either the Left or the Right, in her view the Left, should “win” the contest, peopling the Supreme Court with loyal acolytes who subscribe to their respective views of the world … chapter and verse.  Miers was applauded as an “evangelical” Christian … the subtext being that a solid collective majority of evangelicals, once confirmed, will put their shoulders to the wheel in aid of a complete makeover of the United States … politically, economically and, above all, morally.

Can you think of a more undesirable outcome?  Whenever an issue covered by the Bible, as the “fundamentalists” read it … gay rights, abortion, alleged pornography, “unnatural” sexual practices (sodomy), Christian proselytizing in public schools … comes before the Court, the game is over before it begins.  The majority can mail it in … without bothering to read the briefs or to listen to arguments … the victory is complete.  In those circumstances, a pyrrhic victory it shall be.  With Scalia/Thomas et al., in charge, the Court will lose its political authority.  The Court will allow Texas to arrest gays in their homes if a neighbor detects “sodomy” while peeping through the window.  The gays will defect to New York, which will not extradite: The NYPD won’t arrest, the DAs won’t indict, the juries won’t convict.  The divisions become unbridgeable.

The fact is that the Court’s responsibility is to exercise its right and obligation to be independent and in fact sometimes contrary … to tack against the wind, i.e., the will of the majority, whether Left or Right.  Otherwise, why pretend we enjoy an “independent” judiciary in the first place?

Disclosure the Legend was a law clerk on the Supreme Court for Chief Justice Earl Warren.  Quite understandably the theme of the article is that “those were the good old days,” before all our institutions in this country including the judiciary, became polarized by divisive partisan incursions and obsessions.  As the saying goes, a fanatic is one who redoubles his efforts as soon as he loses sight of his goals.


At Last, Roe v. Wade … and the “Overlapping Consensus”

In the final analysis, the question whether the Justices are activists or non-activists, interpretive versus non-interpretive, originalists versus ‘making it up as you go along,’ is determined in the minds of any number of occupants of both sides of the aisle on how one thinks about Roe v. Wade.  What does the Court do when and as Roe v. Wade comes before the Justices again and, for a variety of reasons, the Court elects to revisit the entire issue?  How do the Justices resolve one of the thorniest issues ever to fall into the lap of Supreme Court?  How do they discharge the Number One Obligation?

As I have argued earlier, lofty analysis lacks bite and substance until and unless the proponent shows how it is applied to a particular case.  Hence, this application of the propositions on which this narrative has settled to a specific fact situation.  The Court is squarely presented with the question whether Roe should be overturned and/or modified.

To set the stage, let’s assume the analysis is being conducted by a Supreme Court, unlikely to resemble this one, which consists of appointees who have not irrevocably committed their vote in response to the political interrogations of the Senator Boxers of this world, or her counterparts on the right hand side of the aisle.  And, assume a group of men and women equipped by broad and diverse experience, collectively capable of rendering a long headed decision, led by a Chief Justice who enjoys the political acumen of an Earl Warren.  We label the Court, for purposes of the thought experiment, the Enlightened Court and the Earl Warren clone the Enlightened Chief Justice or, abbreviating conventionally the Chief.  To give some flavor to the discussion, assume that the case is currently sub judice and all nine Justices are gathered in this weekly Conference, ready to discuss the issues.

The Chief’s Opening Remarks to the Conference: Identifying the Issue:

The Chief opens the discussion by remarking that a number of predicate issues need to address.  The first is, obviously, the appropriate scope of the question to be decided.  Of course, the core issue is whether a woman has a Constitutional right to elect to abort a fetus, and, if the answer is yes, the scope (if any) of a State’s power, once the woman’s right has been established, to surround that right with various constraints … the subject of Justice O’Connor’s opinion in Casey,[13] sometimes abbreviated as the issue of unconstitutional conditions.

The Chief asks: “Does the question before the Court have to do with, and only to do with, aborting a fetus at some point in a pregnancy, plus State power to condition the same, or are there additional factors at work which the Court should take into account?”[14]  The Chief remarks, with respect to the Pro-Life camp, her review of the contemporary landscape leads her, not surprisingly, to conclude that, for many opponents of Roe v. Wade, the issue is not abortion but what they deem to be promiscuity … the outgrowth of the sexual revolution in this country (as it is called) with the birth control pill, and now sexual enhancement drugs like Viagra, contributing to basic immorality which is cauterizing U.S. society.”

To be sure, the most effective way to minimize unwanted pregnancy is with methods Europeans use to keep abortion in their countries as a small fraction of what occurs in less cosmopolitan societies, including ours, i.e., universal access (indeed State subsidized) to birth control apparatus, including the Pill; condoms; vaginal sponges; the morning-after-pill; sex education and (but not only) encouragement of pre-marital abstinence.  Nonetheless, the most energetic elements in the Right to Life Movement reject this formula out of hand.  Dead on arrival.  Their desiderata is, and only is, resort to the criminal justice system, meaning to put people who are involved in abortions in jail … in fact, if one credits the desire of one Senator Cornyn (as I recall), to put them to death on the theory, obviously, that abortion is murder.”

Those fanatics the Chief labels the “Robespierre/St Just Element” of the Pro-Life movement; though a small minority, they are capable, through their energy, of dragging the movement along with them … and they reject compromise of any sort out of hand.  She lightens the discussion by remarking she has heard (in her imagination) from her hypothetical friend, the disinterested rational observer, a/k/a the hypothetical man from Mars.  The Martian initially expressed astonishment at this phenomenon, then tumbled to the secret.  It’s not abortion driving the Neo-Robespierres crazy, but sex, reminding the Martian of an old story:  A women in an alley slips and falls, rear end first, into a garbage can.  Wedged in an impossible position, she starts yelling, “Rape!” at the top of her lungs.  Passersby immediately congregate and free her.  One of them asks, quizzically.  “How come you were yelling, ‘rape’?”  “Who would have come,” she points out cogently, “if I had been yelling ‘garbage’?”[15]

The Chief continues, summarizing her conclusion that, to the Pro-Life hard liners, the question is not abortion … or more accurately, just abortion … but any number of immoral inducements to lasciviousness and licentiousness, particularly amongst unmarried couples.  Abortion is only one piece of the picture.  Others include: vaccines to prevent the spread of cervical infections (they eliminate a deserved risk, inherent in teenage fornication); and contraceptives generally, including the Pill, the Morning After Pill and condoms, abstinence being the only accepted contraceptive methodology.  The thinking of this group ranges from the fanatic … e.g., the Kansas Attorney General fixated on criminalizing adolescent petting … to thoughtful parents concerned that Internet pornography, sexually suggestive TV shows and magazines, Hollywood soft porn movies, Hip Hop lyrics, etc. are contributing to unsafe and undesirable sexual license amongst their children.[16]

Concomitantly, the Chief remarks on the rumblings from the Left hand side of the aisle.  To the Left, Roe v. Wade is only one step in a much more significant societal change … releasing modern women from a variety of burdens, including but not limited to unwanted pregnancy; and once women are liberated in this respect, they will be able to pursue the quest of social and economic equality with men, their career choices including, but not limited to, the election and timing of reproduction.[17]  The pregnant woman, and only the woman, is the decision maker.  Whatever she elects to do, short of post delivery infanticide, is within her sole discretion.

Pro Choice Robespierres, in the Chief’s view, are equally as intractable as Pro Life fanatics.  The give away phrase is reproductive “rights,” meaning that, as with the Rabid Right, there is an agenda which goes well beyond abortion.  No restrictions are acceptable because, again, the issue is not abortion but, on the Left, the Glass Ceiling, Larry Summers, etc.

The hard Left views restraints on abortion symbolically … another social construct emphasizing the disparity between the rights of the rich and the poor.  Bans on abortion, or indeed encumbrance of the right with constraints which amount to denial, will further enlarge the ‘rich/poor’ invidious distinctions; as Anatole France said, “The Law, in its majestic equality, forbids the rich, as well as the poor, to sleep under the bridges, to beg in the streets, and to steal bread.”

The Chief concludes, conventionally, that attempts to take into account concerns that abortion rights encourage promiscuity will wind up in the dismal swamps on which Justice Frankfurter warned when addressing issues of religious dogma.  By the same token, the Court should leave aside the Liberal idea that the horizon be expanded in order to expedite the tectonic power shift between genders occurring, as some of us suspect throughout the world.[18]  She suggests, and the Conference agrees, the discussion focus only on abortion.  Is there a Constitutional right to abortion?  And, if so, is it entirely unburdened or can it be conditioned by a State?  If the latter,  what types of conditions would the Court classify as unconstitutional conditions … conditions which either are designed to and/or have the effect of “unduly” denying the right?

Concominently, the Court will avoid the theological issue whether the fetus, from the moment of insemination, is a “person” in legal parlance or, indeed in religious dogma.  The Chief reminds her colleagues of one of the first propositions each learned in law school … that words which purport to carry a single, ambiguous meaning routinely have, in the law, multiple meanings, depending on the context.  In First Year Property, for example, she learned that the term ‘own’ or ‘ownership’ was highly inflected and nuanced, that an individual might “own” a dwelling in fee simple but not absolutely if the State’s power of eminent domain could trump “ownership” in order to make room for a superhighway.  “Ownership” does not mean freedom to do as one likes with one’s property; zoning and public health regulations intrude on ownership.  No pig farms on New York’s Fifth Avenue.  An inseminated egg may be a “person” in Roman Catholic canon but that concept is not necessarily of use when considering delicate social and medical issues.  As Walter Wheeler Cook put it,

“The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them runs all through legal discussions.  It has all the tenacity of original sin and must constantly be guarded against.”[19]

The short of the matter, the Chief concludes … with her colleagues nodding in assent … is that the Court will not be caught up in metaphysics, theology or gender politics.  Obviously, one’s moral philosophy necessarily informs any decision making process; but for purposes of posing the question before the Court, the trick is to leave metaphysics and holy writ in the background and to focus on the narrow question sub judice. 

The Court’s Number One Obligation

The Chief concludes her opening remarks to the Conference by reminding her colleagues of the Number One Obligation … to step into the breach when other organs of government have become incapable of addressing an important social political and/or economic question.  She reiterates, forcefully and with barely suppressed emotion, what she perceives as the principal problem we face as a nation in the 21st Century … the inability of our system of government to adapt itself to the deep and growing divisions, threatening to tear the fabric of our society apart.  As Justice Breyer has noted, “the risk of ‘social conflict’ [is] far more serious … in twentieth century America than the Framers, with their eighteenth century experience might have anticipated.”[20]  A growing number of our citizens simply are not speaking the same language on matters of critical importance facing our country.  The consequences of the split are readily apparent and the other branches … executive and legislative … appear dysfunctional in the face of the widening divide.  She goes on to note there is little or no civility in Congress these days.  Even at the height of the Vietnam War, President Johnson was able to sit down with Senators from across the aisle and work out compromises which kept the ship of state afloat; senior members could resolve profound differences of opinion by talking with each other, in the cool of the evening, so to speak.  If any of that activity takes place today, she remarks, “it escapes the attention of most of us.  We are getting closer to a government driven by talk show radio and bumper stickers than the systems the Founders devised when Constitutional checks and balances were enshrined in the Constitution.”

However unlikely it may appear at the moment, the possibility of a schism of sorts is nontrivial (cf Scotland, Catalonia, et al.), particularly if the passionately intense on both sides of the divide are driving the bus.[21]  And to no one’s surprise the Chief points out that the abortion issue threatens to exacerbate exponentially the gap between the Left and the Right, the Red States against the Blue States.  The demonstrated ability of the executive and/or legislative branches to effect compromise has been nil.  Whatever the Court can do to decide the issue in such a way that the gap is narrowed or at least does not further widen, the Court will, by finding what the 20th Century’s leading philosopher, John Rawls, called the “”The Domain of the Political and Overlapping Consensus.”[22],” be honoring its Number One Obligation.

The Chief then tees up the first option:

Overturn Roe Unconditionally: States May Ban Abortion Entirely … with (perhaps) the Sole Exception Being Instances of the Mother’s Ability to Survive; Rape; or Incest.

As the Court begins its analysis, the Conference agrees to ponder, as Breyer has suggested, the likely “consequences” of its decision.  And to understand the political dimensions of that option, one of the older Justices, Justice No. One (on the federal bench but not yet on the Court when Roe was decided), ruminates on some history for the benefit of his colleagues.

He argues that, had Roe not been decided as it was, the States would have worked the problem out through “political compromise”[23].  He is concerned that Roe v. Wade has not accomplished the purpose of quieting the dispute, using the word, ‘quiet’ in the elegant way it is used in real estate law, as in ‘quieting title’ to a piece of land.  The need for Supreme Court intervention was not remotely as intense as was the case, say, in 1954 with Brown.  The States, one-by-one, were turning away from criminalizing the procedure.  The State legislatures, left to their own devices, would have worked out amongst themselves a modus operandi.  Abortion might still have entailed (theoretically) a long prison sentence in, say, Texas but the argument is that one would only need to take a motor trip to, say, California (Red State to Blue State) to accommodate the patient and her physician.  In fact, arguably the States were waking up to the fact that criminalizing abortion accomplishes little in terms of achieving the objective.

The immediate response comes from Justice No. Two, then the governor of a Midwestern, so-called ‘swing’ state in 1973, when Roe was decided.  If Justice No. One’s analysis holds water, he asks, why was Roe decided, 7 to 2, the way it was?  Why, as recited in the Roe opinion, had a majority of the lower court decisions (not all) held State abortion bans unconstitutional, based on the right to privacy?[24]  The Court in 1973 was not ultraliberal:  The right to privacy, the foundation of Roe v. Wade, was a favorite of, among others, Justice Harlan, a member of the Conservative wing of the Court.  And, in fact, Harry Blackmun, who wrote the majority opinion, was and remains that Justice most experienced in medical issues, as former general counsel of the Mayo Clinic.[25]  So what was up?

Justice No. Two answers his own question by attempting, as necessary background, to read the minds of the Roe majority.  He contends (without claiming personal knowledge) that Justice Blackmun was influenced by the then perception (at least based, again presumably, on his experience at Mayo) that the controversy over abortion was tearing at society’s fabric.  The opposing forces were each passionately convinced of their moral rectitude, genuine zealots in a mood to ‘take no prisoners.’ Each side represented then (and represents now) deep and important movements in contemporary society – namely (grossly to oversimplify) the acceptance of women as full citizens vs. the attempt to preserve “moral values” on sexual matters, as a unifying force against irresponsible hedonism.  Blackmun and the Court majority were, accordingly, faced with unappetizing choices.  To them, the then-current ‘solution’ was no solution at all – a patchwork of State laws, occasional prosecutions, widespread scofflaw activity, botched medical procedures and a system, if system is the right word, which favored the rich over the poor.  Perhaps most importantly, the pretense of law ‘enforcement,’ in the face of widespread, rarely prosecuted non-compliance ‘trivialized,’ in Herb Packer’s phrase, the administration of criminal justice.  To be sure, Blackmun knew that fashioning a de jure ban on abortion prosecution would involve the Court in a great leap forward, stepping well beyond existing precedents, reading new meaning into the Fourth Amendment – a chore no Justice welcomes, particularly a conservative (at least in his early years) like Blackmun.  Nonetheless, Blackmun forged ahead … and, Justice No. Two submits, the results, near term, confirmed the Court’s judgment.  Remembering that period, Justice No. Two heard (figuratively) the audible sighs of hundreds of legislators when the decision was announced.  They could move on to other pressing matters on the public agenda.  At the time, the consensus (with, of course, passionate objections) was that the questions had been resolved by a thoughtful political institution acting in a highly sensitive way, if only by fiat.  Perhaps the best capsule description recently popped up in The Wall Street Journal, as a renowned conservative, Jeffrey Hart, reflected on the issue … reflections, in Hart’s view, informed by the philosophy of Edmund Burke,

Roe relocated decision-making about abortion from state governments to the individual woman, and was thus a libertarian, not a liberal, ruling.  Roe reflected, and reflects, a relentlessly changing social actuality.  Simply to pull an abstract “right to life” out of the Declaration of Independence is not conservative but Jacobinical.  To be sure, the Roe decision was certainly an example of judicial overreach.  Combined with Casey, however, it did address the reality of the American social process.”[26]

Justice No. Two winds up with an important, to him, historical note:  Blackmun and the six Justices who joined his opinion were obviously aware of deep divisions in this country in the early `70s, caused by the Watergate scandal, Richard Nixon’s resignation, the highly unsatisfactory and deeply divisive winding up of the war in Vietnam.  Justice No. Two says he has to believe that Blackmun and his colleagues were fully conscious of the desirability of dampening Left/Right animosity to the extent possible.

The Chief then takes that remark as a cue to re-emphasize Obligation Number One.  If Roe is overturned now, will the States be able to get their act together and reach the political compromises?

Justice No. Three, most recently an experienced member of the U.S. House and known to be elegantly in touch with vox populi,  takes the floor.  He agrees that the Court, as per Breyer’s contention,  has to deal with the “consequences” of its rulings.  And, he sees some heavy sledding if Roe is overturned outright.  Thus, he argues: Even were one to agree with the historical analysis that, had Roe not been decided as it was, a peaceful compromise would have been worked out on the State level in 1973, the landscape has significantly changed in the last 33 years.  What was deemed to be conservatism in the `50s, `60s and `70s … the conservatism of Bob Taft and Barry Goldwater … has morphed significantly.  Taft and Goldwater were skeptical of the ability of government to change lives; they admired the notion of limited government, maximum freedom for U.S. citizens from government interference … what a leading philosopher of classical conservatism describes as the “Night Watchman State.”  Thus, some conservatives, including Goldwater, could accept Roe because it was a “libertarian, not a liberal, ruling.”

However, contemporary conservatism, at least as expressed by acolytes in the Right to Life camp and styled as Social Conservatives, is today largely in the hands of zealots, convinced that contemporary culture is immoral and that it is their Christian duty to impose a moral code on every man, woman and child in the United States.  The Messiah is coming: His message is clear; and it is up to the faithful to make sure that all the rest of us are saved by compelling us to understand the Christian imperatives as interpreted by the (for lack of a better word) fundamentalists.  Many of today’s Right to Lifers are, as Hart puts it, the true Jacobins.  They are appalled at the “immorality” with which the cult of the individual, stemming from the length to which the sexual revolution in the `60s and the promiscuity enabled by the birth control pill, has infected society.

In short, Justice No. Three suggests, based on his understanding of the public mood, there is little chance that this country will come to rest with a peaceful Red State, Blue State division on the subject of abortion if Roe is overturned.  If one believes, as many on the Christian Right do, that every abortion is murder, no more justified than the gassing of Jews in the concentration camps, then the faithful can never rest until the practice has been entirely obliterated … presumably by neutralizing (however you want to conceive of that word) any and all proponents of the procedure.  If Roe is overturned, the fringe on the Right will be, quite understandably, hugely invigorated and will increase their efforts by several orders of magnitude … the ultimate goal is at last in sight, thanks to the conservative revolution in the country today.

Justice No. Two breaks in to remark that, based on the election returns, there may well be a conservative revolution in the works; and, if so, is it not the Court’s job to spot passing parades and run hard to get out in front?  Justice No. Three responds that, if it is to turn out to be a revolution similar to the one the Colonies engineered in 1776, well and good.  However, if it turns out to be like most revolutions … the French, the Russian, the German and Italian in the `30s, the Chinese under Chairman Mao, the Khmer Rouge under Pol Pot … the pattern will be all too familiar.  As Yeats pointed out the “worst” elements of the revolutionary vanguards, full of “passionate intensity,” take control of the movement and deploy it in pursuit of their objective … often operating under the cloak of religiosity: “Be my brother or I’ll kill you.” And the rallying cry is “abortion.”[27]

To reinforce the point, Justice No. Three cites a perceptive article in The Atlantic Monthly by Professor Jeffrey Rosen, entitled, “The Day After Roe.”[28]

“A  year or so after Roe, [is overturned] state legislators in a large group of swing states would probably remain undecided about precisely which abortion regulations to adopt.  This can only mean they would be consumed by the abortion debate.  The extraordinary spectacle of fifty state legislatures fighting over the question of when life begins would rivet the nation and overwhelm the state legislators themselves, many of whom are part-time representatives with little aptitude or inclination for debating the finer points of ontology. ‘My single biggest concern is that abortion politics will simply dominate state legislatures in many states, even those in which there’s no majority for a criminalization strategy, in ways that will be very unpredictable and will distract policy makers from almost everything else,’ says Ed Kilgore of the moderate Democratic Leadership Council.  ‘In swing states, Democrats would be under pressure to sponsor state legislation re-establishing the right to choose, and they’d have to make some hard choices about how extensive to make that.  I’ve talked to a few state legislators, and everyone has expressed a sense of horror.’”[29]

Assuming the process post a Roe reversal unfolds in accordance with Rosen’s scenario, Justice No. Three contends, the overheated rhetoric which politicians tend to use will inexorably enflame the divisive tendencies in this country today … the prime danger being that the Red/Blue State divide will widen, harden and translate itself into perpetually warring camps on both sides of the divide, at the local, State and Federal level.  This consequence, he says, directly contradicts Obligation Number One.[30]

It is now Justice No. Four’s turn, and she, a former HHS Secretary, raises an interesting question.  If the Court overturns Roe, what will that decision have accomplished?  Will the total number of abortions plummet?  The answer, is of course, not entirely certain but, to Justice No. Four, the weight of the existing evidence is compelling.  She begins by citing Rosen for her view, that the impact of Roe reversal on the number of abortions will be marginal:

“It is conceivable that a year or two after Roe [is overturned], as many as a dozen red states would adopt draconian restrictions on abortions throughout pregnancy, while a larger group of more populous blue states would offer the same access to abortions as they do now.  What effect would this have on the national abortion rate? ‘My guess is that no more than a dozen states could sustain a total abortion ban, and these are principally states where virtually no legal abortions are performed today,’ says Gerald Rosenberg, a University of Chicago professor who has studied the effects of Roe on abortion rates.  ‘That doesn’t mean that individual lives wouldn’t be severely impacted, but in terms of national numbers, the effect would be small.’”[31]

With the wind at her back, Justice No. Four reverts to the mode she was known to adopt when testifying before Congress … blind them with statistics.  Thus, she continues to read from her notes the results of her data aggregation efforts:

“The few existing studies on states that have passed abortion restrictions confirm the obvious: Women who want abortions leave the state to have them.  Mandatory-delay laws, now on the books in 24 states, require a woman to wait usually 24 hours before getting an abortion.  The versions that are the most effective in stopping abortions require women to make two trips to the provider, an obstacle for some who have to travel long distances, take days off work, or arrange day care.  The most comprehensive study of these two-trip laws, a 1997 Journal of the American Medical Association paper on Mississippi’s experience, showed that three things happened in the state after the law went into effect.  Total abortions went down by 12 percent.  The percentage of late abortions (after twelve weeks) went up by 40 percent.  And the percentage of Mississippians going out of state for abortions also went up by 40 percent.  ‘For an economist, those are really strong behavioral responses to the law,’ says Ted Joyce, the paper’s lead author.” (Emphasis supplied.)

As an (obvious) aside, Justice No. Four questions can anyone justify, as a “reasonable restraint,” an edict which is a proximate cause of late stage abortions. [32]

Again reading from her sources, Justice No. Four points out:

“[a]s long as abortion is available somewhere, [parental consent] laws have limited effect.  ‘When Massachusetts imposed a consent statute, abortion rates fell a lot, 43 percent among minors,’ says Joyce.  ‘Yet if you measured abortion rates by state of residence, there was no change.  Kids just poured across the border.

“Regulating abortion in the United States is like playing whack-a-mole.  Every time a state tightens its laws, abortions rise somewhere else.”[33]

On a roll, Justice No. Four looks south of the border.

“Latin America holds some of the world’s most stringent abortion laws, yet it still has the developing world’s highest rate of abortions – a rate that is far higher even than in Western Europe, where abortion is widely and legally available.”

In fact, she continued, the evidence from around the world compels the conclusion that government attempts to outlaw abortion are ineffective and frequently fatal … again quoting:

“Of a total of 46m abortions thought to be carried out each year (more than one in four pregnancies are terminated,” some 20m are illegal, resulting in the death of around 70,000 a year, according to The World Health Organisation. …

“Indeed, some of the world’s highest abortion rates are to be found in Latin America, where it is all but outlawed. The Mexican legislators who voted to decriminalise abortion cited the brutal effects of this gap between theory and practice: an estimated 5,000 women die in Latin America every year from botched back-street or self-administered abortions; a further 800,000 have to be treated in hospital.”[34]

As some of her colleagues shift in their seats, signaling that she has made  her point, Justice No. Four soldiers on, quoting from yet another recent article:

“The evidence is solid about how to reduce abortions; promote contraception and comprehensive sex  education (rather than “abstinence only” programs).  California has let the country in these areas, and as a result it cut teenage pregnancy rates by 39 percent over eight years.  Canadian and European young people are about equally active sexually, but, deprived of proper sex education, American girls are five times as likely to have a baby as French girls, seven times as likely to have an abortion, and seventy times as likely to have gonorrhea as girls in the Netherlands.  Also, the incidence of HIV/AIDS among American teenagers is five times that of the same age group in Germany … it has long been known that there are fewer abortions in nations where prospective mothers have access to contraceptives, the assurance that they and their babies will have good health care, and at least enough income to meet their basic needs.

The result of a rigid fundamentalism combined with poverty and ignorance can be seen where the law forbids abortion.”[35]

Justice No. Four concludes by quoting from a sensitive article by Prof. William Saletan:[36]

“The problem with using restrictions to reduce the number of abortions isn’t that the restrictions are judgmental.  It’s that they’re crude.  They leap too easily from judgment to legislation and criminalization.  They drag police officers, prosecutors and politicians into personal tragedies.  Most people don’t want such intrusion.”

If, Justice No. Four argues, these analyses are at all accurate, why are we even considering reversal?  If the practical impact is trivial, then reversal is, as many suspect, symbolic.  Her voice rises as she questions whether any leading precedent should be reversed on symbolic grounds.

The short of the matter is that the Conference views a total reversal of Roe with great skepticism.  The negatives include: constant scrimmaging at the State level; even if the States in 1973 had the ability to arrive at a peaceful consensus, that prospect appears delirious in today’s world; the social objective … reducing the number of abortions per year … will be as far away as it ever was, and with no one, Pro-Life or Pro Choice, remotely satisfied; and the Number One Obligation is lost in the resulting ‘Red’ v. ‘Blue’ equivalent of the 100 Years War.

The Chief then tables the second alternative:

Leave Roe, Casey and Stenberg Alone … and Do Nothing Else.

Justice No. Five, an academic with advanced degrees in social relations and statistics, states what is, to her, the obvious.  Status quo will not mean that citizens of all 50 states have a right, as a practical matter, to an abortion, construing the term “right” as synonymous with an effective and practical option.  Thus, in the reddest of Red States, say, South Dakota, a pregnant woman will need to cross the State line, if she can afford it, and have the procedure done in a jurisdiction where community hostility does not crimp her possibilities to the point of non-existence.[37]  Moreover, appointments to the Supreme Court will continue to be based on, and based largely on, the nominees’ expressed, or suspected, attitudes towards Roe v. Wade.  State legislatures, particularly in the Red States, will continue to test the “undue burden” standard laid down by Casey, imposing “reasonable” restrictions such as a 24 hour waiting period, spousal consent, parental consent, a required review of sonograms of the fetus in vitro and anything else Red State legislators can dream up.[38]  In particular, Justice No. Five, agreeing with Justice No. Three, forecasts the enactment of State statutes criminalizing the emigration of a Red State pregnant woman to a Blue State to obtain an abortion … including convictions of anyone complicit in the criminal act by, for example, driving the woman across the state line or helping her locate a provider on the Internet.[39]

In short, she points out the obvious.  If we leave our existing precedents alone, and move on to other topics, the courts will still have to deal with the question raised by the Devil, as in ‘the Devil is in the Details.’  What do we do, she asks her colleagues, about the continuing controversy which keeps everybody’s teeth, including ours, on edge.

That is, “assume” she asks, “we leave Roe standing and reaffirm Justice O’Connor’s opinion in Casey.   This means we continue in the business of reviewing State statutes incorporating rules ostensibly based on, as Justice O’Connor phrased it, a State’s ‘important and legitimate’ interest in preserving and protecting the health of the pregnant woman [and] protecting the potentiality of human life.[40]  We will continue, then, to test, with ‘strict scrutiny,’ each restraint against the test laid down in Casey … whether the ‘purpose or effect of the regulations is to be place a substantial obstacle on a woman seeking an abortion before the fetus obtains viability.’  If so, the restraint is an “undue burden;” if not and the State has its “important and legitimate interest” behind the restraint, then the restraint passes the Constitutional test.

“In short, if we uphold Roe and its successors, including Stenberg,” Justice No. Five sighs deeply, “will not this Court be forever occupied with testing legislation, presumably originating in the Red States, which is cleverly designed to protect and preserve the health of the pregnant woman and not to pose an “undue burden?”  We have to assume,” she remarks, “that the legislators in the Red States are both clever and endowed with inexhaustible stamina.  They will probe the nooks and crannies of our prior opinions relentlessly, using such apparently innocuous as lengthy waiting periods, parental consent, required sonograms, and consent of the spouse or the father … all as wolves in sheep’s clothing, Trojan Horse type restraints designed to appear innocuous and trivial but, de facto, to defeat the right in a given jurisdiction for all but the affluent and educated.

Justice No. Five then quotes from Chief Justice Rehnquist’s dissent in Casey to the effect that this process is essentially unworkable or, as he put it, “a sort of judicial Potemkin Village.”[41]  And she continues to argue that, although, she doesn’t agree with Chief Justice Rehnquist.

“He has a point.  Are we content to participate in a continuing battle of wits with Red State legislatures.  Granted that Justice Blackmun had a sound foundation in reviewing the ethical implications versus the efficacy of various medical procedures.  But, he is no longer on the Court.  How do the rest of us make as respectable Constitutional judgment when faced with the issue of viability and the health of the pregnant mother … expert testimony from the head of the South Dakota Medical Society versus the head of the Massachusetts Medical Society?  How do we get out of this conundrum?  Should we replace the ‘undue burden’ standard, looking at State burdens one-by-one as the Rehnquist dissent suggests, with an objective standard; the first and second trimester, no restraints, the third trimester no abortion.  Looks simple.  However, assuming the State so elects and we uphold a third trimester ban, we will still have to wrestle with exceptions for the mother’s health … indeed, the mother’s life.  Can the State require that the mother risk her life to give birth if the fetus is viable in the third trimester?  As for first and second trimester abortions, can the State require that the procedure be performed in hospitals; that the patient’s name be reported to a State agency; that the mother attend an informational session prior to making her election to an abortion; that viability be decided not by trimester but by fetal weight or sonogram evidence; that a second doctor be present during the procedure regulating the disposition of the fetus?”

Justice No. Five goes on to point out that the opinions on “strict scrutiny” of restraints imposing an “undue burden”, balancing the same against the State’s “legitimate interest” are flawed, involving the balance between two mutually inconsistent principles … the health of the mother versus the health of the fetus.  And this dichotomy has given birth to language in the post-Roe opinions which is truly ugly … indeed in Justice No. Five’s view, unworthy of men and women who have undertaken the responsibility to act as referees on the Court of Last Resort.  A few examples make the point.  Thus, in Casey, Chief Justice Rehnquist stated that the “undue burden standard is plucked from nowhere.”[42]  The standard is necessarily applied, in his opinion, by judges “guided only by their personal views.”[43]  Justice Scalia was in typical form when in Casey when he insults O’Connor personally … ridiculing her opinion by suggesting her conclusion had Third Reich overtones.[44]  On the opposite side of the coin, Justice Blackmun in Casey accuses Chief Justice Rehnquist of homophobia.[45]

Indeed the insults are even more pronounced in Stenberg, where Justice Scalia accused Justice Breyer and his opponents on the Court of giving “live birth abortion free rein” in an opinion which is “simply absurd,” with the five Justices in the majority implicated as, Scalia’s language can only be read as insisting, in legitimizing murder.

Well, wait a minute, Justice No. Six intercedes.  He, a veteran judge, with service on both the federal state and federal benches, obvious:

“How are we going to get out of the business of reviewing State restraints?  We have the precedents of Casey et al. the ‘undue burden’ test subjecting the restraints to ‘strict scrutiny,’ … but we have to recognize that a State has some legitimate interest in this matter.  After all a very significant cohort of people in this country view abortion as inherently evil.  In fact, nobody is pro-abortion unless they are victims of Munchausen’s syndrome.  Everybody would be a good deal happier if abortions were never performed, or in fact opted for.  By deciding the way we did, we necessarily got into the business of subjecting restraints to “strict scrutiny” to see if they are ‘undue burdens.’ The only alternative is to go with Rehnquist’s notion that any “legitimate interest” a State can plausibly cook up justifies the restraints … which is the same thing, as any common sense individual has to recognize, as saying that Roe is repealed and it is up to the States to regulate abortion as they see fit; Reds on one side and Blues on the other.  We might very well like to get out of the business of applying with ‘strict scrutiny’ the ‘undue burden’ test but, if Roe is not overturned, we cannot.”

Justice No. Five raises her hand and asks for permission to respond, out of order.  The panel groans, given Justice No. Five’s verbosity, but Justice No. Six grants her request:

“If you want a real life example of why we should not assume the burden of considering, case by case, the question of undue burden (pardon the pun) let me cite the sorry example of Gonzales v. Carhart, making only two points about Justice Kennedy’s opinion in that case:

“First, let me quote from the criticism of one of the most distinguished Constitutional scholars in this country, Charles Fried; I excerpt from Professor Fried’s OpEd piece in The New York Times:

“The decision is disturbing because the court has on numerous occasions refused to allow Congress to overturn constitutional law by bogus fact finding, notably in decisions invalidating the Violence Against Women Act (which Justice Kennedy joined) and the Religious Freedom Restoration Act (which Justice Kennedy wrote).

“It’s disturbing because Justice Kennedy fails to come to grips with his own jurisprudence, going so far as to say that because Congress was acting under its power to regulate interstate commerce, it needed only a rational basis to justify its decision. Where a fundamental right is involved, such an explanation is evidently wrong.

“It’s also disturbing because Justice Kennedy was not quite willing to embrace his own conclusion. He suggested that perhaps as applied in a particular case in which there was an increased health risk the ban might be unconstitutional after all. What can that mean? The very complaint here was that the ban was unconstitutional because it applies in just such situations. Does the court contemplate a surgeon pausing in the midst of an operation in which he determines the banned procedure might be less risky, and seeking a court order? …

“Finally, the decision is disturbing for a more far-reaching reason: there are indeed cases where the court in the last few years had become truly incoherent, largely as a result of Justice O’Connor’s pragmatic and under explained abandonment of positions she had earlier agreed to or even proclaimed on affirmative action and campaign finance. The first issue has been argued and will be decided this term of court; campaign finance is being argued this week.

“If the justices eliminate the confusion and restore principle in those areas, the cry will go up that the court is simply reflecting its changed political complexion, not reasoning carefully and promoting stability and clarity in the law. And last week’s decision will lend plausibility to that charge.”[46]

Justice No. Five suggests Fried’s criticism is notable, first, because of his acknowledged position as a preeminent Constitutional scholar, coupled with his service as Solicitor General, from 1985 to 1989, and a Justice on Massachusetts Supreme Judicial Court, returning from that position to the Harvard Law School where he currently resides.  (A personal note, Fried is a friend of this writer and is a fellow law clerk on the Supreme Court in the 1960 team.)  Secondly, she remarks that no one who knows anything about Fried could remotely entertain the notion that he is in the “activist” (i.e., ultra liberal) camp of Constitutional scholars … quite the contrary.  Given that labels, particularly as applied to a distinguished thinker like Fried are inherently misleading, nonetheless, if one must categorize Fried as either Liberal or Conservative, obviously Conservative is the more appropriate description.

“Third,” she winds up, “I am dismayed and deeply disappointed at the strained reaching to which Justice Kennedy was compelled to resort in upholding the federal ban in Carhart on partial birth abortion.  Let me quote from the opinion to illustrate what I mean:

“They [the Respondents] contend – relying on the testimony of numerous abortion doctors—that D & E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion procedure. It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D & E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner. Brief for Respondent Panned Parenthood, et al. in No 05-1382, p. 38.

“This reasoning, however, does not take account of the Act’s intent requirements, which preclude liability from attaching to an accidental intact D&E. If a doctor’s intent at the outset is to perform a D&E in which the fetus would not be delivered to either of the Act’s anatomical landmarks, but the fetus nonetheless is delivered past one of those points, the requisite and prohibited scienter is not present.[47] When a doctor in that situation completes an abortion by performing an intact D&E, the doctor does not violate the Act. It is true that intent to cause a result may sometimes be inferred if a person “knows that that result is practically certain to follow from his conduct.” [48] Yet abortion doctors intending at the outset to perform a standard D&E procedure will not know that a prohibited abortion “is practically certain to follow from” their conduct.[49]

As Justice No. Five concludes, a wry chuckle percolates, as she expected, around the Conference and the Chief Justice expresses the collective thought:

“Am I right in recalling that Justice Kennedy describes the doctor’s defense in a criminal trial involving the type of procedure the Respondents recite as dependent on an argument that the doctor lacked the requisite scienter?”

Justice No. Five:  “Would you believe it?”

The Chief Justice shakes her head, continuing:  “I wonder if Justice Kennedy had read any of the opinions in securities fraud cases where the term scienter, or more properly the lack thereof, has been the principal defense of, say, Bernie Ebbers and Jeffrey Skilling, et al;  Justice Kennedy’s thought is that the statute does not impose an ‘undue burden’ on the physician because, in the midst of the procedure, he or she has the opportunity to figure out whether protection borrowed from the Securities Law, will keep him or her out of jail?  Why, that’s ludicrous.  Given the history of successful prosecutions in complex securities fraud cases, no doctors in their right mind would pay any attention whatsoever to the scienter defense, even if one had all day to weigh one’s options.”

The Chief Justice finally winds up:

“One can always attack, of course, a Supreme Court opinion on one basis or another, lobbying the verbal grenades at the reasoning in colorful language, it happens all the time, and no opinion is immune from that kind of lurid criticism.  However, the more important point is stated in the last paragraph of Prof. Fried’s article, expressing his concern that the opinions of the Court simply reflect “its changed political complexion, not reasoning carefully and promoting stability and clarity in the law.”  That is my point.  If we continue in the business of considering case by case enterprising and imaginative attempts to chip away at Roe v. Wade, Casey and Stenberg, as Abraham Lincoln once said, “The shop will be open for no other business.”  Moreover, and this is the real problem as I see it, the nomination process will continue to be entirely politicized, focused almost exclusively on the nominees’ attitudes towards Roe … and now Carhart.  Maybe, as Justice Scalia has argued, we never should have gotten into the abortion business in the first place.  But we are here, and I see a very dim future for Supreme Court jurisprudence if we don’t lay down the law as it were, and then follow it, as Charles Fried’s suggests, in a principled manner respecting the precedents, whether or not one’s personal and political views are consistent with the same.  As Justice O’Connor has put it, in words more eloquent than mine, her fear is that judicial nominations are turning into: “ … political prize-fights, where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.”[50]

Now it is Justice No. Seven’s turn.  A former Speaker of the House of Representatives, he is well known for his ability to draw a consensus from the differing opinions on the opposite sides of the aisle.  With the Chief’s not so subtle approval he asks:

“Why don’t we have a review of the bidding?  As I have listened to the discussion, I think I detect general agreement on the following points:

First, even if we leave existing precedents on the books but do no more, we will continue to be involved in the process of weighing the State’s legitimate interest on the one hand in the health of both the mother and of the fetus (as if those two interests could be reconciled, particularly if you define health as including mental health) and balancing that interest, as if it were a single interest, with an inquiry, employing ‘strict scrutiny,’ into the question whether the State’s expression of its interest, as a rule imposes an ‘undue burden’ on a woman’s right to control her reproductive processes.  We have been at that job since 1973 and I am not sure we are much further along than we were when we started.  And, certainly the warring camps on either side in this country have not laid down their ideological assault weapons, nor have the legislatures in the Red States been discouraged from posturing with legislation which is camouflaged as advancing the State’s interest as defined by Justice O’Connor.

Secondly, we have learned that criminalizing the procedure is largely ineffective.  As long as there is a Blue State haven (or, indeed, one across the border), where local professionals accommodate, perhaps illegally, pregnant women, the level of abortions will be largely uninfluenced.  Regardless of the vote getting appeal such restraints may have in, say, South Dakota or Kansas, criminal law in this country will continue to be trivialized, law makers turning away from education, public health, etc. in favor of symbolic laws entailing about as much seriousness as bans on burning the flag.”

Eureka Moment Number One:  Redefine the State’s Interest

Justice No. Eight, the senior member of the Court, a Wall Street lawyer prior to his appointment, and it’s the quickest mind, interrupts.  He concedes that Justice No. Seven has correctly summarized the dilemma.  Smiling broadly, he expresses a novel thought:

“Eureka,” he says.  “We revisit the equation.  Let’s leave the discussion of the “right”… a woman’s right to an abortion … where it stands in Roe, Casey, Stenberg.  Not much we can profitably add, no matter how many cases we take up.  We forget Gonzales because the likelihood of a prosecution under that holding is too remote to bother with.  Let’s turn the analysis on its head.  Let’s redefine the State’s “legitimate interest.”

What does that mean, he asks rhetorically?  Well, he suggests we recognize that abortion is “bad,” formally phrasing our opinion on the basis of perceptive remarks by William Saletan that: 

“Most people will tolerate it [abortion] as a lesser evil or a temporary measure, but they’ll never fully accept it.  They want a world in which it’s less necessary.  If you grow complacent or try to institutionalize it, they’ll run out of patience. …

“For several decades, abortion-rights advocates have tried to change the subject.  The real question, they argued, was who should make the abortion decision, not what that decision should be.  With the question put that way, they won.  But they never faced the question of abortion’s morality.  So the debate became a contest between the two questions.  A decade ago, with the coinage of ‘partial-birth abortion,’ pro-lifers gained the upper hand.  President Bush focused the debate on a culture of life.  When the question is ‘what’ instead of ‘who’ – morality instead of autonomy – pro-lifers win.

“The lesson of those decades is that you can’t eliminate the moral question by ignoring it.  To eliminate it, you have to agree on it: Abortion is bad, and the ideal number of abortions is zero.  But by conceding that, you don’t end the debate, you narrow it.  Once you agree that the goal is fewer abortions, the only thing left to debate is how to get there.”[51]

By adopting formally Mr. Saletan’s suggestion, Justice No. Eight claims the Court will go a long way towards bringing moderate Pro Lifers into the fold.  They are not ridiculed as misogynists, as wolves in sheep’s clothing attempting to use the abortion debate as a method of keeping uppity women, particularly those in Hollywood and on the West Side of Manhattan, in their rightful place.  He elaborates:

“We take over when others have failed, offering the Pro Life Community legal and effective ways to achieve anti-abortion resultsi.e. fewer abortions … albeit without criminal anti-abortion laws.  This leads to the redefinition of the State’s ’legitimate interest,’ which we now phrase as reducing the number of abortions by any and all means other than criminal prosecutions.”

“We, in short, accentuate the positive.  We say we are not going to revisit Roe, Casey, Stenberg et al.  They stand as written and we are not going to go there again.  If and as  State legislators attempt to find lacunae in those opinions, we emphasize strict scrutiny.  In fact, we can apply, as cases come to this Court requiring interpretation, Justice Stewart’s definition of pornography.  We like, everybody else regardless of political viewpoint, can quite quickly pick up on a restraint which is a camouflaged gambit … an undue burden on a pregnant mother.  Sure, as per Gonzales, there will be occasional skirmishing in the third trimester, distinguishing a permitted procedure from infanticide.  We can deal with that narrow issue when and as it arises.  But the thrust of what we say to the States, to the Congress and to the Executive is that we have come as far as we are going to go in balancing considerations which are not susceptible to the traditional balancing analysis.  If a woman has a right to an abortion, she has a real right to an abortion.  The fetus will not survive.

“But” and Justice No. Eight emphasizes this is the critical qualification, “we don’t stop there.  We say to the States enthusiastically and positively you have a legitimate interest in reducing unwanted pregnancies, as they lead to bad results.  To the extent you move along these lines, we are on your side!”

With tongue in cheek, he points out that the new definition comports with Justice Scalia’ remarks, dissenting in Casey, where Scalia defended a State’s power to “regulate abortion in such a way as to reduce significantly its incidence.”[52]  He then stands, figuratively, Scalia on his head:

“We recognize the State’s interest in reducing the number of abortions, and test State restraints on that basis.  We ask the traditional question when a burden on a protected right is before us.  Is the State action rationally related to the goal of reducing abortions or it is a camouflaged ploy to punish lascivious sex, a/k/a sex without tears?  If we credit the evidence painstakingly assembled and cited by Justice No. Four (Justice No. Two groans, “Allright, already; we concede the point”), an outright ban or its concealed equivalents, are not rationally related to the objective as we redefine it.”

“Well, wait a minute,” says, Justice No. Two, “the restraints we are seeing may not be the best way to achieve the objective … reduction of incidence … but they, the criminal justice system, obviously can have some effect.”

“Sure,” crows Justice No. Eight, “but they run up against hornbook constitutional doctrine … if a protected right is in jeopardy, we admonish the States to achieve their objectives in ways that are the least threatening to the right itself.  If there are clearly better ways to reduce abortion incidence than criminal sanctions, ways focused on reducing unwanted pregnancies, and in a manner which does not ‘burden’ the right, then that’s the path the States must follow.  If, on the other hand, it is sexual behavior certain States have in mind, we dealt with that in Roe, Lawrence, etc.  We say to the State in question.  ‘Back off.’  For example, take the theocrats’ efforts to ban vaccinations of young girls which minimize cervical cancer … an obvious gambit to limit sexual activity.  Moreover, as a matter of moral principle, how can we uphold a restraint, styled as anti-abortion, if the only measure adopted is indictment and jail?  Dear God, in any Christian society, is it not mandatory that the governing authority endorse all feasible measure to inhibit abortion incidence short of putting doctors, nurses and/or self aborting mothers in jail!  Jail has to be the last resort, not the first line of defense, if we are to believe any legislature is focused on reducing abortions.  To focus on, and only on, locking people up, when there are myriad effective ways to finesse the issue … that’s criminal!

The Chief picks up on Justice No. Eight’s proposal.  She notes with approval the array of initiatives currently underway in which the religious and the secular are toiling in harness to reduce risky sexual behavior, resulting in unwanted pregnancies.  One model, ripe for special mention, is the Left/Right coalition in Congress and in the private sector, zeroed in on the plight of helpless young women victimized by predatory pimps and rape as a way of waging war.

And, of cardinal importance, “reasonable” does not mean one size fits all.  Reasonable citizens can diverge reasonably in their approaches to the problem, as long as the constitutional right is not infringed.  Thus, the Chief notes that differences in approaches between, say, Utah and New York are acceptable, laudable in fact, if driven by bona fides.

Utah, for example, can stress abortion alternatives for pregnant mothers … additional child support and services; pre-natal counseling; housing; child care.  Utah, biased as its citizens are in favor of large families, attempts to comfort mothers and encourage motherhood not by idle threats of jail and duplicitous regulations but by giving the lie to Barney Frank’s remark that conservative Pro-Lifers believe the right to life begins at conception and ends at birth.  Abortion is as much a right in Utah as in New York, but alternatives are stressed.

New York can, on the other hand, elect to attack the issue by focusing on women’s rights … i.e., sex education; corralling deadbeat fathers; family planning; protecting adolescents against rape and abuse; offering young women career options so they can raise families on their own; and, finally, liberal and affordable access to contraceptive medications and devices.  The New York legislature can elect to rely on evidence marshaled by Jimmy Carter (who is against abortion on principle) on the subject of the preventive advantage of education and contraception.  And the Chief winds up by repeating, yet again, a point made by Saletan:

“The pro-choice path to those results is simple.  Help every woman when she doesn’t want an abortion before she’s pregnant.  That means abstinence for those who can practice it, and contraception for everybody else.  Nearly half of the unintended pregnancies in this country result in abortions, and at least half of the unintended pregnancies, are attributable to women who didn’t use contraception.  The pregnancy rate among these women astronomically exceeds the pregnancy rate among women who use contraception.  The No. 1 threat to the unborn isn’t the unchurched.  It’s the unprotected.”

In short, the Chief submits that, if abortion is addressed by focusing on reducing the cause, there is no dispute society has a legitimate role to play … by, for example, discouraging unwanted pregnancies amongst kids too immature to understand the consequences.  This goes for any and all dangerous sexual activities, of course.  Importantly, in the process of promoting the consensus, the Court can happily approve government initiatives encouraging abstinence and prudent behavior, even though the same are ‘faith-based’ and promoted by religious organizations.  The Enlightened Court, the Chief urges understands the State’s legitimate interest in protecting young (and old) people from folly.  To the extent that religious group shares the State’s interest in this regard … and they, of course, in fact do … coincident efforts are clearly constitutional.

This phase of the discussion winds up with the Chief gleefully citing again, Justice Scalia’s dissent in Casey … the issue was whether a given State action is aimed directly at “regulat[ing] abortion in such a way as to reduce significantly its incidence.”[53]  The Chief exclaims:

“That’s just the point.  Criminalizing the procedure and/or imposing Trojan Horse restraints does not ‘reduce significantly [abortion’s] incidence.’  The measures we are discussing do:  The data is overwhelming.  Assuming Scalia is not one of those whose opposition is symbolic, then our ruling should be just what he has in mind.”

She winds up with a final quote from Saletan:

“What we need is an explicit pro-choice war on the abortion rate, coupled with a political message that anyone who stands in the way, yammering about chastity or a ‘culture of life,’ is not just anti-choice, but pro-abortion.”[54]

Eureka Moment Number Two: Redefining the “Right” To Choose

As Justice No. Eight resumes his seat, smiling, with a pat on the back from the Chief, Justice No. Nine, a long time academic, a prominent Catholic layman and the leading contrarian on the Court, stands to give his opinion.

“Let’s take the process of standing prior analysis on its head a step further.  Having looked at a woman’s right to abort the fetus, why don’t we balance that right with a new right, which we might recognize in the Constitution, much in the way we recognized the right to privacy as the foundation of reproduction rights.  Let’s call it the real right to choose … to choose between abortion and giving birth!”

“If we recognize the right to abort the fetus,” Justice No. Nine continues, “why would we not recognize a Constitutional Right in every pregnant woman to give birth if she so elects?”

“Well,” says the Chief, playing the role of Devil’s Advocate, “of course every pregnant woman has that right.”

“No she doesn’t,” says Justice No. Nine “… not as a practical matter.  Let’s say, as is often the case, she is indigent; a minor; half educated, difficult personal problems; no health insurance; no support.  Why wouldn’t we recognize, for example, her right to free medical care anywhere in this country so that she can, if she chooses, carry the baby to term.  If the choice facing her is to be real, it has to include prenatal counseling and medication, particularly if she is HIV positive.  How about a right to a child allowance for the first, say, three or four years, which at least gives her and her child a chance to make it in a difficult world.”

“Well,” says the Chief, again smiling, “we would be making up that right, would we not, thus opening a can of worms.”

Justice No. Nine responds that the Court can recognize the redefined “right” with as much Constitutional justification as existed in Roe.

“We don’t want to encourage pregnancy amongst those who are incapable of caring for their children.  But it strikes me that, if pregnant women in this country have any special rights, that portfolio should include a right to medically adequate obstetrical care … delivery of her child with as much attention and oversight as goes into OB-GYN treatment of the well off.  If the Left is concerned about the disparity between the rich and poor, let’s establish a right which eliminates that disparity, at least until the baby has been delivered and all medical initiatives have been completed to insure, to the extent possible, it is a healthy child.  And how can the Right to Lifers object?  This is a real, all rhetoric aside, reproductive right … the right to give birth to, and raise, a healthy child.  That’s just what the Lefties say they want.”

“Let’s conjugate that right so it includes care and support for a sufficient period to give the new mother a chance to stand on her own two feet.  A realistic right to child care while the mother seeks a job.  There are, indeed, a couple of facts-on-the-ground which makes the new right a winner.  Thus, a child allowance is consistent with the effort of many developed countries, faced with steeply declining birth rates.  We are acting the way Earl Warren did in Brown … spot a passing parade and run hard to get out in front of it.”

Justice No. Two is screwing up his face skeptically; Justice No. Nine smiles.

“I know … this looks like universal health care.  But, keep in mind that we are talking about health care for children.  And, this is a far easier and cheaper undertaking than health care generally, where old people (like me) and patients with chronic diseases take up so much of the available resources.  Moreover, a leading cause of poverty and other social ills is teenage pregnancy.  If the teenager is overwhelmed, she has the right to terminate the pregnancy.  If she, as many do, wants to give birth, we give her the right to have a chance in life, the support she needs if she and her child are going to have a shot at a fulfilling life.”

The Chief points out that the Court needs to find some Constitutional justification for the right to bear children and Justice No. Nine is poised to pounce.

“I agree,” he concedes, “that the right must be found somewhere in the language of the Constitution.  And, for this purpose, I am adopting the Originalist Argument of Justice Scalia.  The language is obvious.  It is in the privileges or immunities clause.  All we have to do is carve a little slice off the Slaughterhouse Cases and dust off the original meaning of the privileges or immunities clause.  We will take Senator Howard, its principal proponent in the Senate, at his word.  If we recognize, as we do, the right of women to abort, we are recognizing the same based on the right to privacy.  That is of course, substantive due process, as the critics allege; the opposite side of the right to abort is the right to give birth.  Assuming, as Professor Ely has characterized Senator Howard’s statements on the floor, the Constitution contains, ‘language capable of growth’ it is no stretch at all to package a right to abort with a right to give birth in a clean and medically adequate venue.  If we are going to navigate our way out of the swamp, we have to tip our hat in the direction of responsible opinions on both sides of the question.  What better way than to complement the woman’s control of her reproductive process than by covering both ends of the spectrum.”

The Last Word: Nine to None

As the Conference has now run over by a couple of hours, the Justices are anxious to leave.  With the gavel back in her hand, the Chief moves to the final step in the process … to call the roll.  Before so doing, she returns to Brown v. Board of Education, discoursing on the subject as a way of getting to a critical item on her agenda … quieting the dispute.  A major element of Brown, she points out, is often overlooked … and, again, it is a function of Warren’s political genius.  He understood that, if a matter as contentious (both in reality and symbolically) as racial inequality were to be given constitutional scrutiny, he had to silence those mutineers who would attempt, indefatigably and perpetually, to overturn the decision.  He saw he needed a nine to nothing opinion of the Court and he got it, persuading, particularly, Alabama Justice Blackmun and Virginia Justice Stanley Reed to go along with him.  Of course, the issue did not disappear; again the Devil was in the Details as Warren clearly understood, with his compromise order (“with all deliberate speed”) which gave room for the Federal legislature to fill in the details … a process that continues to this day.  What the nine to nothing decision did, however, was to scrub from the racist agenda … and long term if not forever … the idea that a change in the make up of the Supreme Court would result in Brown being overturned.  Warren’s crowning achievement was to take the issue off the table and liberate future Presidents to appoint individuals to the Court without the stultifying incubus of the nomination process being a function, and only a function, of how the individuals felt about Brown.

She now, having set the table, gets to the point:

“Whatever the result, she pleads, do your best to subordinate your personal idiosyncratic nuances to the overall goal … an opinion which is as close to unanimity as the Good Lord will allow.  If we are agreed in the main, let me try to get all of us behind one statement, a text which stands on its own two feet, unqualified by concurrences and personal pride of authorship … and, therefore, has the best chance, God willing, of putting the core issue to rest.  Let’s see if we can draft a statement which helps to channel bona fide societal concerns into pathways which lead to outcomes and methods of arriving thereat, which men and women of good will on both sides of the aisle can applaud.”

The Conference adjourns.

[1] Roe v Wade, 410 U.S. 113 (1973).

[2] Gonzales v. Carhart, 05-380, 05-1381 (Apr. 18, 2007)

[3] My argument on this point is based on a position long associated with Simon Peres, who has repeatedly pointed out that democracy needs elaborate and painstaking incubation before it can flower.

[4] Ely at 1. The Warren Court was driven by a concern with the process on which the laws that govern society are made.”  Ibid. at 74.

[5] If there were any doubt on that subject, listen to the leading “Originalist” scholar, Justice Scalia, on the subject of what he deems to be acceptable public attitudes towards homosexuals. Dissenting in Romer v. Evans 577 U.S. 620 (21003) and Lawrence v. Texas, 539 U.S. 558 (2003)he listed certain prevalent views of the citizenry which he appears to find within the zone of respectability) and worthy of constitutional respect, viz:

In Romer, Scalia equated:

“… moral disapproval of homosexual conduct,” with the conclusion that “murder” is “reprehensible,” each point of view apparently deserving of equal weight and respect,

Romer v. Evans at 644.

And in Lawrence, he elaborated on the point he made in Romer:

“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, [sic] adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. The impossibility of distinguishing homosexuality from other traditional ‘morals’ offenses is precisely why Bowers  rejected the rational-basis challenge.” Lawrence v. Texas at 590

Scalia professes he has “nothing against homosexuals.” Lawrence at 603. Perchance might his choice of words in the above remarks give a hint or two as to what really goes on in Scalia’s mind when, as and if he is dragged to Brokeback Mountain, viz: homosexuality as “harmful conduct,” can be placed by well-meaning citizens whose views are entitled to weight by legislatures and the courts, in the same category as “murder.” It is not “discrimination” (i.e., invidious discrimination) if homosexuals are barred from teaching jobs in Texas public schools or as employees in local businesses. As they say, if it quacks like a duck, i.e. like a homophobe, it’s a duck.

The quotes from Scalia’s dissents are highlighted in Ring, Scalia Dissents, published by (why am I not surprised) Regenery. Thus, Scalia finds sodomy prosecutions, not sodomy itself, “deeply rooted in our nation’s history and tradition, ““grouping sex between homosexuals in the same category as, e.g. child pornography. One is necessarily compelled to conclude Scalia would vote to uphold the imposition of the death penalty, which he favors (see Scalia Dissents, Chapter 6), by a Red State jury for the offense of homosexual sodomy. Imagine what a country we would have were Scalia’s view to prevail.

[6] Howard introduced the proposed amendment in the Senate on behalf of the Joint Committee, explaining “the views and motives which influenced that Committee.”

[7] Obviously, at some level of generality we can all the agree, Liberal, Conservative, Libertarian, Fundamentalist, on propositions such as: judges should act with restraint; they should not substitute their judgment for those who have drafted and enacted a statute or Constitutional provision. However, again at that level of generality, the phrases don’t mean anything, in the sense that they don’t provide a useful guideline for specific decision making.  What does Originalism mean to an ultramontane redneck like Scalia … obviously that the Biblical plague (as he reads it) on homosexuals is his “original” source.

[8] Lawrence v. Texas (02-102) 539 U.S. 558 (2003) 41 S. W. 3d 349, reversed and remanded.

[9] Romer v. Evans at 644.

[10] Scalia Dissents, 281.

[11] Ely at 292

[12] Leonhardt, “A Polarized Court, Weighs a Reversal of the Safety Net,” NYT, Mar. 3, 2015, A3

[13] Planned Parenthood v. Casey, 505 U.S. 833 (1994).

[14] See Justice Blackmun’s opening remarks in Roe:

“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

“In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.” Roe n. at 116.

[15] If there were any doubt that, to the Pro-Life zealots, the issue is promiscuity (in their view) vs. abortion, consider a hypothetical dialogue … again the Man From Mars (MFM) plus Elmer Gantry.

MFM:    You want to criminalize abortion, right?

Gantry:  It’s murder.

MFM:   Evidence from other societies shows the criminal law is not much of a deterrent … not, at least, as effective as sex education, the Pill, condoms, the morning after Pill.

Gantry:   Lies, damn lies and bogus statistics.

MFM:   O.K., let’s say you get criminal penalties … jailing mothers and doctors.

Gantry:   Right on.

MFM:   Lots of resultant problems, right? Back street procedures; rich go to Canada, the poor to jail, etc.

Gantry:   I say, again, it’s murder.

MFM:   If I concede that point, is there any principled reason not to supplement the criminal regime with any and all methods effective in preventing the imposition of jail terms in the first place … any diminishing the number of crimes any way we can. Again, the Pill, condoms, etc.  You lock your doors to cut down on burglaries, right?

Gantry:   Ugh! The 60s! Free love. Sex without tears.

MFM:   Case closed. The issue is sex, right?

[from Au Contraire]

[16] See Roe, at 148:

“It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.”

No commentator?  Hardly …

[17] It is clear that, to some on the extreme Right, the abortion issue is a proxy for what someone once described as the “ever new subjugation of women.”  See William Kristol on the subject:

“For the truth is that abortion is today the bloody crossroads of American politics. It is where judicial liberation (from the Constitution), sexual liberation (from traditional mores) and women’s liberation (from natural distinctions) come together … So, challenging the judicially imposed regime of abortion-on-demand is key to a conservative reformation in politics, in morals, and in beliefs, … “

William Kristol, Commentary (Feb. 1997).  Note the choice of words … “women’s liberation from [their] natural distinctions,” meaning, of course, wrong headed “liberation” in Kristol’s opinion.

[18] See Tireseas, Au Contraire 139 (Xlibris 2002).

[19] Cook, The Logical and Legal Bases of the Conflict of Laws, 159 (1942).

[20] Breyer, Active Liberty, p. 121.  

[21] The passion in the contending camps is triggering dangerous extremist attitudes towards institutions vital to our constitutional democracy, including the judiciary itself.  Witness the recent remarks of Justice Alito, as reported in The New York Law Journal:

“I think this is one of the times in our history when there are some real threats to the federal and state judiciary, and I don’t think I’m being too much of an alarmist to say that we could be not too far from the tipping point when an accumulation of things does real damage to these vital institutions.” Scholl, “Alito Says Level of Attacks On Judges Hit Historic High” NYLJ Oct. 2, 2006.

Justice Alito added.

“I hope that we can all work to prevent that from happening.”

The New York Law Journal article goes on to quote from former Justice Sandra Day O’Connor’s column in The Wall Street Journal.

“While scorn for certain judges is not an altogether new phenomenon, the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history. The ubiquitous ‘activist judges’ who ‘legislate from the bench’ have become central villains on today’s domestic political landscape. Elected officials routinely score cheap points by railing against the ‘elitist judges’ . . . Several jeremiads are published every year warning of the dangers of judicial supremacy and judicial tyranny. Though these attacks generally emit more heat than light, using judges as punching bags presents a grave threat to the independent judiciary.”

[22] Rawls, Political Liberalism, New York, NY: (Columbia University Press, 1993); O’Connor, “The Threat to Judicial Independence,” Sep. 27, 2006.

[23] See Justice Scalia on the landscape in 1973:

“National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue – as it does over other issues, such as the death penalty – but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.”

Casey at 995.

[24] Roe, at 134.

[25] It is interesting to note the extensive treatment in Blackmun’s opinion of the history of abortion in the medical profession, going back to the Hippocratic Oath, Galen, the Pythagorean theorem and references to Plato’s Republic and Aristotle’s Politics:  He concluded that: “Most Greek thinkers commended abortion, at least prior to viability.”

Roe, at 131.

[26] Jeffrey Hart, “The Burke Habit,” WSJ, 12/27/05, p.A20.

[27] In Roe, Blackmun considered the question of a fetus as a person with rights, like any other person’s, to 14th Amendment protection. He noted:

“There are … inconsistencies between Fourteenth Amendment status and the typical abortion statute … it has already been pointed out, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?”

Roe, n. 2 supra. at 157, n. 54.

[28] Rosen, “The Day After Roe,” The Atlantic Monthly 56 (Jun. 2006).

Rosen is no fan of the Roe decision, which he feels was “high handed.”  He appears to be in sympathy with Justice No. One’s view that, had Roe never happened and the issue left to the States, State legislatures over time would have worked out a system where by a series of compromises would reflect state-by-state, the result in Planned Parenthood v. Casey to the effect that abortions prior to fetal viability (about 24 weeks into the pregnancy) were protected constitutionally but those subsequent to that period could be restricted by State action.  That view would suggest that the result in Stemberg v. Carhart, striking down State laws banning partial birth abortions, should be overturned.  Most States would have allowed early abortions … although, in the Red States, encumbered by spousal notification laws, parental consent laws, 24 hours waiting periods and other such barnacles, all designed to give the appearance of an abortion opportunity but nonetheless inhibit the procedure.  Rosen feels that, in Roe v. Wade, and in subsequent cases which struck down such restraints, “the Supreme Court overturned political compromises that national majorities supported, provoking dramatic political backlashes.”  He opines that the Supreme Court

best maintains its legitimacy when it has functioned as the most democratic branch – that is when it has deferred to the constitutional views of Congress, the President and the Country as a whole. Many of the most famous decisions by the Warren, Burger and Rehnquist Courts similarly reflected the popular will.

As indicated, I agree with Rosen in the case of Brown v. Board of Education; but his conclusion would, I am confident, arouse a sardonic smile on Earl Warren’s face were the decisions under scrutiny not Brown but those which dealt with free speech during the McCarthy era, and the rights of criminal defendants.  Had Rosen been there at the time, he would have understood that the Court was leading, not following, public opinion, using its elegant second sight to detect where public opinion was going … but certainly not where the numerical majority found itself at the time.  A poll on protection of First Amendment Rights for Communist Party members, and the reliability of confessions, however obtained, if taken at the time the decisions were rendered, would show how widely unpopular these decisions were. “Impeach Earl Warren” bumper stickers; the conference of State Supreme Court Justices seeking to neuter the Supreme Court’s jurisdiction in reviewing State law.  You had to have been there to appreciate the Warren Court’s ability to get out ahead of popular opinion.  Thus, the Enlightened Court understands its decisions should ordinarily comport with public opinion … but, most importantly and in major cases, the Court must forecast where public opinion will be once the Court, the Congress, the Administration have had an opportunity to educate, and an “awareness” of civilized liberty to “emerge.”

[29] Rosen, n.22 supra at 60.

[30] An author commenting on the political environment in his State, Minnesota, make a point that the current political climate encourages politicians to create

“… an air of constant crisis, both foreign and domestic.  Crisis rhetoric which is inherently radical rather than conservative, dissolves social stability.

In this sense terrorism has infected every subject and every discussion, even locally. Alarmism has become so ubiquitous in discussions of Iraq, the decline of the family and financing for social security and education that polarization is assured.  Extremity, after all, is more newsworthy than good sense.”

Baxter, “A Campaign in Crisis Mode,” NYTimes, Sunday, Sept. 24, 2006, OpEd, p.13.

[31] Rosen. n. 22 supra at 60.

[32] “The New Underground Railroad.” New York Magazine, 42, Dec. 12, 2005.

[33] Ibid.

[34] “A Question of Life and Death,” The Economist, May 19, 2007, p. 65.

[35] Kristoff, “Abortion, Condoms and Bush,” NYTimes Section 4, Col. 6, p. 13 (Nov. 5, 2006).

[36] Saletan, “Three Decades After Roe, a War We Can All Support,” NYTimes, Op-Ed (Jan. 22, 2006).

[37] To cite one more forecast from Rosen’s piece:

“A dozen state abortion bans might not dramatically change the national abortion rate, but they would dramatically change state and national politics. After Roe, women with disposable incomes would still be able to travel to have an abortion. Poor women, on the other hand, might be forced to seek abortions from illegal local providers. If television footage began to show arrests of illegal abortion doctors, the political framework for the abortion debate would almost certainly be transformed. ‘With Roe on the books, the focus of the abortion debate has tended to be on issues like partial-birth abortion, which is a huge political winner for Republicans,’ says Michael Klarman of the University of Virginia, a scholar of the Court and public opinion. ‘If you take Roe off the books, the focus will be on poor women in a handful of states trying to get illegal abortions, and these highly salient examples are going to benefit the other side.’” Rosen, at 60.

[38] The moving force, “[b]ehind the scenes is a little-known Chicago-based organization called Americans United for Life, which for some 30 years has been guiding the effort to chip away at Roe v. Wade.”

Cummings, “Targeting Roe,” WSJ 1 (Nov. 30, 2005). Ironically, as the article points out:

“The New Hampshire case is just the latest step in Americans United’s strategy to ultimately persuade the Supreme Court to overturn Roe, the landmark 1973 ruling establishing a woman’s constitutional right to an abortion. It’s a plan first outlined by the group in a 1987 book, titled ‘Abortion and the Constitution: Reversing Roe v. Wade Through the Courts,’ that still serves as a legal blueprint for the antiabortion movement. The group takes its inspiration from long, gradual and ultimately successful effort to bring a fundamental change to American society through the courts: the National Association for the Advancement of Colored People’s drive to overturn the Supreme Court’s ‘separate but equal’ doctrine that underpinned segregation.”

“The civil rights group’s plan was to chip around the edges for years before finally succeeding in having the high court overturn the 1896 ruling. Americans United, a legal braintrust of the antiabortion movement, has a similar carefully calibrated attack, based on helping states pass laws that test the limits of abortion regulations, then defending those laws in courts.”

[39] A federal statute is already in the hopper … ostensibly limited to minors helped across State lines without parental consent.

[40] Casey, at 877.

[41] Casey at 983. And Scalia adds, “Justice Blackmun’s “parade of adjective is similarly empty.”  Id at 984.

[42] Casey at 965.

[43] Casey at 965.

[44]             The Imperial Judiciary lives.   It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges–leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals”–with the somewhat more modest role envisioned for these lawyers by the Founders.

Casey at 996.  The Third Reich analogy is not unusual for Justice Scalia, vide:

“… as a law professor, Scalia wrote an article that both condemned Justice Lewis Powell’s carefully crated opinion on affirmative action and belittled it with sarcasm. Scalia blasted Powell’s opinion as an [sic] historic trivialization of the Constitution’ and ‘an embarrassment to teach.’ He proceeded to ridicule Powell’s opinion by sarcastically proposing a ‘Restorative Justice Handicapping System’ for awarding points to various ethnic groups based on their degree of victimization. Scalia went even further by implicitly comparing affirmative action, as approved by Powell and other justices on the Supreme Court, with actions by Adolf Hitler’s Nazi Germany:  ‘[W]hat was good enough for Nazi Germany is not good enough for our purposes. We must further divide the Aryans into subgroups… it will, t be sure, be difficult drawing precise lines and establishing the correct number of handicapping points, but having reviewed the Supreme Court’s jurisprudence on abortion, I am convinced that our Justices would not shrink from the task.’”  Scalia, “The Disease as Cure,’ Washington University Law Quarterly (1979): 147, 153.

[45]             “Obviously, I do not share the Chief Justice’s views of homosexuality as sexual deviance.”

Casey at fn. 11.

[46] Fried, “Supreme Confusion,” NYTimes, April 26, 2007.

[47] 18 U.S.C § 1531(b)(I)(A)(2000 ed. Supp. IV).

[48] 1 LaFave § 5.2(a), at 341.

[49] Ibid.

[50] The Economist, June 30th, 2007, p. 38.

[51] Saletan, supra n. 34.

[52] Casey, at 992.

[53] Casey at 992.

[54] Saletan supra n. 34.

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