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Jeff Rosen On The Culture Wars


He wrote a piece in the Times Magazine on Sunday that I had meant to comment on. His thesis is that the Supreme Court, by issuing the ruling it did in Texas v. Lawrence (the sodomy case), was reigniting the culture wars. I think that this is true, although to the extent it is a bad thing it is a vice secondary to the constitutional nuttiness of the Court’s opinion.

But one comment of Rosen’s really stuck in my craw. He wrote, “In the Reagan and both Bush administrations, lower court and Supreme Court nominees were selected largely because of their perceived opposition to Roe, which was used as a litmus test of judicial virtue. The result is a polarizing gap between the moderate views of the country as a whole on abortion and the radical opposition it continues to inspire among conservative legal elites.”

Never mind that Clinton had a publicly announced litmus test for Roe, as do many of the current Democratic candidates for president. Reagan and Bush I didn’t, and any unannounced litmus test they had was rather less effective than the Democratic one, as witness O’Connor, Kennedy, and Souter on the one hand and Breyer and Ginsburg on the other.

There is no “radical opposition” to abortion among conservative legal elites. There is opposition to Roe–which is entirely defensible, as Rosen himself concedes that it is “constitutionally questionable.” That opposition is rather less implacable than I wish it were–Kenneth Starr and Michael McConnell both seem to have made their peace with Roe. Finally, what about the polarizing gap between the public’s moderate views and the substance of Roe?


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