Bench Memos

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Sunstein on Roe


Senate Democrats’ efforts to attack as extremist anyone who criticizes Roe is a bit complicated by the fact that Professor Cass Sunstein, one of the leading lights of the Left, is himself very critical of Roe. Here’s what he has to say in his latest book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (which I will be reviewing in an upcoming issue of National Review):

“[C]onservative critics are entirely correct to object to some of the Court’s liberal decisions, including Roe v. Wade itself.” (p. 19)

“Exemplifying perfectionism at its most extreme, [Roe] raised grave doubts about the Court’s use of the Constitution to solve divisive social controversies.” (p. 83) (“Perfectionism” is Sunstein’s label for a judicial approach that he rejects—in his words, “that the continuing judicial task is to make the document as good as it can be by interpreting its broad terms in a way that casts its ideals in the best possible light.” (p. 32))

The “right to privacy” relied on in Roe finds its real roots in the Court’s first invocation of substantive due process in the Dred Scott case. (pp. 82-86)

“Minimalists [which Sunstein calls himself] are greatly embarrassed by Roe, and rightly so.… [T]he Court badly overreached.… As a matter of constitutional law, protecting fetal life may well be a constitutionally sufficient reason to intrude on the right to choose.” (p. 106)

“[M]inimalists respect Roe’s critics. They agree that Roe has shaky constitutional foundations.” (p. 108)

It is true that Sunstein takes the position that Roe should nonetheless not be overruled, but even here his position is tepid: He asserts that “it is not senseless to think that, although Roe was wrong, and a big mistake, the Court should not now overrule it.” (p. 108) To say that something is “not senseless” is, of course, a far cry from saying that it is right.


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