Roe v. Wade & Bush v. Gore
Making judicial activism "mainstream."


Senate Democrats have decided to filibuster the president’s nomination of Priscilla Owen to a federal court because they believe her to be a conservative “activist,” especially on the issue of abortion.

Sounds scary, but have you seen the judicial mainstream lately? Sen. Dianne Feinstein (D., Calif.) has; here’s what she says about its importance: “President Bush did not have a large mandate. There is no mandate, in my view, to skew the courts to the right. And so I think you’re going to see a Judiciary Committee that’s really going to be looking for mainstream judges… There are points that many of us feel passionately about, one of them being Roe v. Wade.”

One can hear in these words a muted echo of Yale professor Bruce Ackerman’s remarkable suggestion that the Senate should refuse to confirm anyone nominated to the Supreme Court by President Bush. Why? Because he was illegitimately installed in office by a conspiracy of right-wing justices in Bush v. Gore, the decision that stopped the controversial Florida recount.

There is a real connection between Roe v. Wade and Bush v. Gore. It’s common knowledge that abortion politics has played a huge role in judicial-selection battles for many years. Justice Byron White (appointed by President Kennedy) could not be nominated by a Democrat today — he called Roe an improvident and extravagant exercise of raw judicial power. What is less well-known is that much of the academic legal establishment is making a determined effort to discredit Bush v. Gore, and to vilify the five justices who joined the majority opinion. The demand for blind obeisance to Roe and the assault on Bush are both are part of an Orwellian project: To recast judicial fidelity to the law as “right-wing politics,” while also redefining extreme forms of judicial activism as “the mainstream.”

The stakes in the battle are high, and go beyond the fate of any one nominee. They even go beyond the issue of abortion. The real question is whether we are to get judges committed to applying the law, or judges who treat the law as a game in which the winner gets his policy views enacted as judicial decrees. If the Democrats’ filibuster strategy succeeds, judicially created abortion rights will certainly be safe for the moment, but no rights — and no laws — will long be secure from cynical judicial manipulation.

Bush v. Gore provides an illustration. The majority opinion applied well-settled precedents from the Warren Court in a perfectly straightforward fashion, and none of those dissenting could explain why those precedents were inapplicable. Instead, they criticized the majority on political grounds. Justice Breyer, for example, admitted that the Florida recount was unconstitutional, but argued that the U.S. Supreme Court should have let it proceed anyway. Why? “Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself.”

Justice Breyer’s attitude should not be confused with judicial restraint. Just a few months before Bush v. Gore, for example, Breyer himself had authored an opinion in which the Court considered an effort by Nebraska to ban “partial-birth abortions” without violating the dictates of Roe v. Wade. Thirty states and both houses of Congress had passed similar laws, because millions of American citizens (including the late Daniel Patrick Moynihan) regarded this practice as verging on infanticide. Breyer and four of his colleagues frustrated their efforts by adopting an interpretation of the statute that had been rejected by Nebraska’s attorney general and was never adopted by its courts. Using this far-fetched interpretation, the Court manufactured a phony conflict between Nebraska’s law and Roe v. Wade. Presto! Partial-birth abortion was protected, and the judicial “mainstream” took another lurch toward the outer limits of civilized conduct.

Breyer’s approach is based in a theory deeply embedded among sophisticated legal elites. That theory essentially holds that the law is whatever judges say it is, and that judges should “improve” the laws that have actually been adopted in the Constitution and in the statutes enacted by our elected representatives. This idea — that the validity of judicial decisions depends on the merits of the policy outcomes to which they lead — is already the mainstream view in American law schools. Senate Democrats appear determined to ensure that it becomes the mainstream view among American judges as well. If they prevail, our judicial institutions will stop being courts in anything but name. At that point, we should really start asking why these politicians-in-robes should enjoy life tenure — and why they should get the last word on so many important policy issues.

Nelson Lund is a professor at the George Mason University School of Law.