Bench Memos

Justice Ginsburg on Roe v. Wade

Last March, my JCN colleague Carrie Severino wrote an excellent USA Today op-ed entitled “Gay marriage victory might backfire,” making the case that our country’s experience with Roe v. Wade should make gay marriage advocates wary of asking the U.S. Supreme Court to decide the matter once and for all.  As she explained:  

The case of Roe v. Wade is instructive, because it mirrors the current state of the same-sex marriage movement in many ways. By 1973 when the Roe decision was handed down, the political stars appeared to be aligned in favor of abortion advocates. Abortion enjoyed widespread support in academia and among opinion elites as well as in public opinion polls, and was making headway in state law. The year before the Supreme Court decision was handed down saw nearly 600,000 legal abortions performed.

Despite these trends, taking abortion away from the legislatures galvanized widespread opposition. From hundreds of proposed constitutional amendments and state laws, to a national movement that has slowly but steadily shifted cultural opinion, abortion has become an issue that permeates the political process, particularly respecting judicial nominations, and has morphed into a key divide between the major parties.

Interestingly, in a speech a the University of Chicago this past weekend, Justice Ginsburg signaled that she shares Carrie’s perspective, at least with respect to Roe v. Wade. Per the AP story:  

U.S. Supreme Court Justice Ruth Bader Ginsburg says she supports a woman’s right to choose to have an abortion, but feels her predecessors’ landmark Roe v. Wade ruling 40 years ago was too sweeping and gave abortion opponents a symbol to target.

Ginsburg, one of the most liberal members of the nation’s high court, spoke Saturday at the University of Chicago Law School. Ever since the decision, she said, momentum has been on abortion opponents’ side, fueling a state-by-state campaign that has placed more restrictions on abortion.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told a crowd of students. “… My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.” . . .

Ginsburg told the students she prefers what she termed “judicial restraint” and argued that such an approach can be more effective than expansive, aggressive decisions.

“The court can put its stamp of approval on the side of change and let that change develop in the political process,” she said.

The logical import of Justice Ginsburg’s comments, of course, is that the Supreme Court should resist the temptation to establish a right to gay marriage from coast to coast, instead letting this issue play out in the states. Justice Kennedy made remarks in March that led some to believe he is of the same view, based on his “concerns that the high court,” rather than the democratic process, ”is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.”

No one can know for sure how Judge Ginsburg will vote on these cases, but her comments are certainly a good sign for those of us who are asking if the Supreme Court will “decide to detonate another dirty bomb, poisoning the culture wars for decades to come,” as Carrie put it.


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