Bench Memos

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The Old Ratchet Racket


In today’s Boston Globe, Harvard Law’s Cass Sunstein exhibits the intellectual bankruptcy of the pro-choice legal professoriate.  The academic defenders of Roe v. Wade have long since abandoned actually defending it; Sunstein is a case in point as he says of Roe, “[t]he court failed to root the abortion right in either the text of the Constitution or its own precedents.”

So why should voters back the candidate who promises to preserve Roe with his judicial appointments?  Because, says Sunstein, the ruling “has been established law for 35 years”; because overturning it would “disrupt and polarize the nation”; because “American constitutional law is stable only because of the principle of stare decisis . . .”

Um, hang on there a minute, Professor.  You’ve just admitted that Roe itself flew in the face of precedent–indeed, of the entire history of common and constitutional law, I would add–and it follows therefore that Roe was a destabilizing force in American law.  And it is universally recognized that politically, Roe “disrupt[ed] and polarize[d] the nation.”  Why does your own logic not drive us to conclude that overturning Roe would constitute a restoration of constitutional law’s stability?

Is it just that a period of 35 years achieves a new status quo that must be respected for stability’s sake?  How much time is needed?  Weren’t you making this argument ten years ago, and even twenty, perhaps thirty years ago?  And if 35 years are enough, what about 58?  That’s the stretch of time that passed between Plessy v. Ferguson and Brown v. Board of Education.  Did Brown not destabilize and “disrupt and polarize” our law and politics?  Isn’t the important question whether it was right?

It’s an old story, of course, how the “progressive” thinkers in constitutional law have no use for any precedents but the ones that abandoned still older precedents, in the name of being . . . unbound by precedents.  And Sunstein has the nerve to say that overturning Roe would be “anything but conservative.”  But Sunstein’s own diffidence about the quality of his argument is indicated by how quickly he changes the subject to other sky-is-falling arguments about the dangers of possible McCain appointees to the bench.

In National Journal, the careful moderate Stuart Taylor is, I’m sorry to say, only careful and moderate by contrast to the careless and passionate Cass Sunstein.  Describing himself as “lean[ing] to the abortion-rights side,” Taylor works overtime to portray both Obama and McCain as “immoderately absolutist,” relying on polls to make his own case for the liberal ratchet effect.  But it’s clear that such analysis is not Taylor’s strong suit.  He writes, for instance that the public

is ambivalent.  Polls show that most respondents, by ratios that are sometimes close to or above 2-to-1, do not want to see Roe v. Wade overturned.  But paradoxically, majorities do support some restrictions (such as spousal-notification requirements) that are barred by current law, which is already more restrictive than the original Roe; decisions over the past two decades have somewhat narrowed Roe’s protections while preserving its “essential holding.”

As Ramesh Ponnuru has tirelessly explained many times, what Taylor thinks is “paradoxical” is easily explained by the fact that most respondents to surveys have only the dimmest, and mostly inaccurate, understanding of what Roe wrought in our law.  So they say they want it preserved (thinking it sanctions only first-trimester abortions without restriction, for instance) while simultaneously saying they’d like more restrictions that they think it permits–although it doesn’t.

And come to think of it, I’m beginning to wonder if legal analysis is Taylor’s strong suit, either.  I always have thought so.  But what can he possibly mean by saying that “current law” is “more restrictive than the original Roe” as a result of some “decisions over the past two decades”?  Other than the federal ban on partial-birth abortion, which prohibits only a certain particularly barbarous method of performing an abortion, there has been no change in the legal regime installed on January 22, 1973.  It has been consistently true ever since that day that a pregnant woman may obtain an abortion at any time before her child’s birth, for any reason, from any physician willing to perform the procedure, and the law is helpless to do anything about it.

And this is what Taylor thinks (echoing Sunstein) it would be “radical and destabilizing” to overrule.  Yes, this is indeed the voice of moderation.


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