Richard Nisley

The Great Divide—Roe v. Wade
History - American Released - Sep 16, 2018
Has there ever been a more divisive Supreme Court decision than Roe v. Wade? Brown v. Board of Education was controversial in its day, but did not divide the country in any meaningful or lasting way. More recently, Obergefell v. Hodges, which legalized same-sex marriage, while controversial, has stirred up none of the dissension of Roe v. Wade. Roe v. Wade has divided the nation unlike any Supreme Court decision since possibly Dred Scott v. Sanford (1857). Roe v. Wade has pushed the extreme elements in both political parties to the point where in Congress compromise decisions have become increasingly rare, where opponents across the aisle are seen not only as wrong but very wrong and possibly evil.

Roe v. Wade is among the many Court decisions discussed in “The Most Democratic Branch: How the Courts Serve America,” by Jeffrey Rosen, a professor of law at The George Washington University Law School. In some ways, it’s the only case, as the author cites Roe v. Wade again and again as among the worst examples of judicial unilateralism, in which the court acted out of step with the executive and legislative branches of government and, crucially, the American people. Many court watchers and legal analysts, including liberal Supreme Court Justice Ruth Bader Ginsberg, would agree. Justice Ginsberg has repeatedly spoken out about the need to find a balance between advancing constitutional values and respecting the democratic process, and for criticizing Roe v. Wade for having moved too far too fast. If that’s true, who should make the call on the abortion issue? According to the author, the decision should be made by the states, or more pointedly, by the state legislative branches. More about that in a moment.

First, are the courts the most democratic branch of government? For the most part they are, says Rosen, when they "reflect and enforce the constitutional views" of the American people. “Paradoxically, the courts, often derided as the least democratic branch of government, have maintained their legitimacy over time when they have been more rather than less democratic in their constitutional views.” They get into trouble when they unilaterally try to strike down laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people, says the author. He cites Roe v. Wade and Bush v. Gore as two striking examples. Rosen’s book is a cautionary tale about the chaos that may result if judges forget they are as accountable to the American people, as much so as elected officials, as, for example, the executive and legislative branches of government. Rosen recommends judicial restraint (as opposed to judicial activism) as the solution. It’s a time-honored approach that has enjoyed widespread support among liberals and conservatives but is increasingly out a fashion, he says. “This tradition, famously associated with judges like Oliver Wendell Holmes, Felix Frankfurter, and Learned Hand, holds that courts should play an extremely modest role in American democracy.” Put another way, judges should confine themselves to gentle nudges rather dramatic shoves.

Rosen argues that Roe v. Wade is a case where the Court should have nudged gently but instead they shoved dramatically. “(Roe v. Wade) represents one of the few times in the Court’s history that it has unilaterally leaped ahead of a national consensus about liberty and equality to impose a complicated reform not yet accepted by a majority of the public.” At the time of the decision, nearly a third of the states had liberalized their abortion laws, but thirty states still had laws on their books forbidding abortion except to save the life of the mother. And nationwide public opinion when Roe was decided appeared to support reform but not complete repeal of abortion restrictions. At the time, the efforts of reformers were focused on state legislatures, which the Roe decision stopped.

No one can be sure how quickly abortion laws would have been liberalized across the country. Rosen suggests that the reform movement would have achieved this if allowed to continue. In fact, more than half the country since 1973 has consistently opposed restrictions on abortion during the first three months of pregnancy. Moreover, this national majority in favor of the right to choose abortion during the first trimester remained largely unchanged for nearly two decades after Roe.

The response to Roe created a series of conservative interest groups who sought the appointment of Supreme Court justices who would reverse Roe. Yet, public opinion has not changed in the interim. The national majority still remains in favor of the right to choose during the first trimester. Which brings us back to where the issue should have been addressed in the first place—by the legislature.

Most Americans are moderates and tend to be more liberal than the pro-life base, says Rosen. Should Roe v. Wade be overturned, which is not out of the question, it’s likely moderation would return to American politics. The abortion question would then be a decision for state legislatures and ultimately for Congress to make, and would reflect the political makeup of all the country, rather than the extreme elements of either political party. Being pro-life or pro-choice would not carry as much weight. Under such a scenario, “judicial nominations could go back to normal at last,” says Rosen. It’s refreshing to think so.

Rosen’s book makes a strong case for judicial restraint that challenges proponents of both liberal and conservative judicial activism. As one critic put it: "Rosen's is a theory of adjudication for grown-ups: those at once concerned to limit judicial power and impatient with shrill doctrinal prescriptions for doing so." Amen.

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