In a recent op-ed, Cass Sunstein has tried to raise liberal fears about McCain’s potential appointees to the Supreme Court.

We might well return to a period in which states threatened to subject pregnant women, and their doctors, with jail sentences for exercising the right to choose. Alaska Gov. Sarah Palin opposes abortion even in cases of rape and incest, and there is no doubt that many states would attempt to enact that belief into law.

Earlier in the week, Sunstein tried out a stronger version of the claim:

It is relevant here that many people, including McCain running mate Sarah Palin, believe that abortion is unacceptable even in cases of rape and incest, and there is little doubt that if Roe is overruled, some states will enact that belief into law.

I was a little surprised to read these comments. In Radicals in Robes, his 2005 book, and again in a 2006 article (vanished in The New Republic’s archives) responding to me, Sunstein had confidently predicted that any overruling of Roe would lead to an immense political backlash that would destroy the Republican party. Indeed, in the book he declared that “everyone knows” this to be true. (I responded to Sunstein at the time.)

The 2008 Sunstein’s views, or at least his emphases, are in some tension with those of the earlier Sunsteins. I don’t recall the earlier Sunsteins expressing any alarm that some states would prohibit abortions without rape-and-incest exceptions (or even that some state legislators would “attempt to” prohibit them). I wonder what has changed? Other, that is, than the political calendar, which has created a need for Sunstein to mobilize liberals for the candidate he is advising?