It is June 2007. In a bitterly contested 5-4 decision, the Supreme Court has just upheld a federal partial-birth abortion ban and struck down the landmark 1973 ruling, Roe v. Wade. The United States Congress and fifty state legislatures are now free to ban, restrict, or protect abortion as they see fit.
The decision sets chaos in motion: the states, Congress, the White House, and the lower courts, which long operated under Roe’s rule, are sent scrambling like bugs under a flipped rock. Legislators rush to regulate abortion with either draconian bans or sweeping protections. Voters revolt. Some politicians continue to cater to their bases, dooming themselves to defeat, while others switch parties—or form new ones.
Such is the scenario imagined by Jeffrey Rosen in “The Day After Roe,” The Atlantic’s cover story for June. To get there, he envisions Justice John Paul Stevens retiring over the summer and Judge Edith Jones—“a fire-breathing social conservative”—filling the vacancy this fall, following a filibuster mounted by the Democrats, which the Republicans rout with the so-called nuclear option. The Court has already said it will hear a constitutional challenge to the federal ban on partial-birth abortions; in Rosen’s scenario, the justices narrowly vote not only to uphold the ban but to overturn Roe. Their decision, he writes, “would probably ignite one of the most explosive political battles since the civil-rights movement, if not the Civil War.”
Rosen argues that it was an unwisely activist Court that in 1973 halted a likely political march toward the sort of compromise on abortion that national majorities supported. The roadblock—Roe—caused a backlash then, and overturning it now would provoke another one, sending the country at least temporarily spiraling into extremes before the march toward compromise could resume its steady, disciplined pace.
If a national referendum were held the day after Roe fell, there’s little doubt that early-term abortions would be protected and that later-term abortions would be restricted. But the U.S. Constitution doesn’t provide for government by referendum. Because of the intricacies of American federalism, and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come.
The Supreme Court, Rosen writes, has “best maintained its legitimacy when it has functioned as the most democratic branch”—reflecting the national consensus on political and legal issues. Its 1992 decision in Planned Parenthood v. Casey seemed to accomplish this, striking a compromise between the protection of early-term abortions and the restriction of late-term ones. With Roe, however, the Court broke that tradition, turning a second-string anonymous surname into the most controversial monosyllable in American political history.
Jeffrey Rosen is a law professor at George Washington University and the legal-affairs editor of The New Republic. A fan of what he calls “justice kitsch”—Supreme Court bobbleheads, for example—he has written previously for The Atlantic on the legacy of the late Chief Justice William Rehnquist, as well as on John Ashcroft. His latest book, The Most Democratic Branch: How the Courts Serve America, will be published by Oxford University Press in June, a month before he and his wife, a bipartisan couple, expect twins.
I spoke with him by phone on April 25, as he was wrapping up the law school semester.
You argue that the Supreme Court best maintains its legitimacy when it defers to popular understanding, but how does the Court gauge such a thing?
In a sense, finding out the popular understanding about constitutional issues is what judges do all the time. Conservative judges who say that the Court should follow the original understanding of the Constitution are asking what the people thought when they ratified the constitutional amendments. Judges who care about the traditions of the people want to know whether popular understandings about the Constitution have shifted dramatically enough to justify a change in constitutional interpretation. So different judges might look in different places. You could look to text, to history, to original understanding. You could see what states are doing.
The court in Roe v. Wade was criticized because it struck down more than thirty state laws restricting abortion from the beginning of pregnancy. It was impossible to argue that there had been a shift in popular understanding by the early 1970s, even though public opinion was moving in a more liberal direction.
Do you think the 1973 court expected Roe to be as controversial as it was?
It didn’t. It’s obvious from Linda Greenhouse’s wonderful new book, Becoming Justice Blackmun, that the Court was completely surprised and blindsided by the reaction to Roe, because the justices had talked primarily to people of their social class. They were living in a very small bubble, and it hadn’t occurred to them to try to imagine what the reaction would be. They thought Roe would be an uncontroversial decision.
They were moved by the fact that all the lower courts to have considered abortion cases had come up with some version of an abortion right, although not one as sweeping as in Roe. The shortsightedness of the justices suggests that courts are actually very bad at predicting public opinion and often get into trouble when they ignore it.
So they were simply out of touch?
Yes. They were prisoners of their own perspective and they also, frankly, weren’t terribly thoughtful or sensitive about the need to try to avoid dramatic public backlashes. Even in the early 1970s, the Court was coming off of the grandiose heights of Warrenism. It had great confidence in its ability to govern the country. It hadn’t learned yet from the experience of the death penalty cases. Public opinion had been moving in favor of the death penalty, and then the Court heavy-handedly struck it down, provoking a backlash that then increased support for the death penalty. The justices had thought they were merely moving in a progressive direction and would be heartily applauded for it.
Two years before Roe the Court upheld a District of Columbia abortion ban in United States v. Vuitch. What happened in between?
The D.C. abortion ban case is a poignant cautionary tale. It was a much more thoughtful and incrementalist holding. It asked whether or not the reform laws that many states were adopting were unnecessarily vague. The conclusion was that they weren’t. Still, it opened the possibility for striking down more extreme laws in the future. What happened, I suppose, had more to do with internal court dynamics, but once Justice Blackmun was given the Roe opinion, he seemed to be determined to write it fairly broadly.
You say in the article that Roe “high-handedly leaped ahead of a national consensus.”
The national consensus about abortion in the early 1970s was—in retrospect, anyway—clear. Large majorities, more than two thirds, supported the right to choose early in pregnancy, but even larger majorities opposed the right to choose later in pregnancy, after fetal viability. The court paid no attention to this stable consensus, but instead struck down restrictions on abortion later in pregnancy that a majority of the country supported, such as informed consent, parental notification requirements, and so forth.
It’s interesting to ask what a more sensitive or modest Roe opinion might have looked like. I suppose that the Court could have tried a compromise, striking down the extreme Texas law that contained no rape and incest exceptions, but upholding the more moderate Georgia law that did contain those exceptions. Even so, that would have involved an awful lot of invalidation. But such a ruling might have been a little bit closer to public opinion—might have provoked less of a backlash. Justice Ginsburg, in her celebrated criticism of Roe, suggested a compromise along those lines. She said that if the Court had merely struck down the most extreme abortion laws, allowing the other ones to stand, then public opinion could have continued to evolve in a more liberal direction.
That sounds like your argument that if Roe hadn’t “short-circuited the national political debate about abortion,” then state legislatures might have arrived at a compromise more reflective of the national consensus. How confident are you about that prediction?
Not very. It’s impossible to be confident with predictions about constitutional futurology. It’s a very dangerous business. My sense is that had the Court not stepped in so heavy-handedly, the nation might have arrived at a compromise earlier—perhaps as early as the late 1970s—like the one the Court eventually settled on with its Casey decision in 1992, namely protecting early-term abortions and restricting later-term abortions.
But history has a way of playing tricks on us. It’s possible that the pro-choice movement might have stalled. After all, only four states had passed therapeutic reforms, which basically made abortion available throughout pregnancy, and some important pro-choice referenda had been defeated in the years right before Roe. So the path in a world without Roe wouldn’t have been clean. There are an awful lot of moving pieces of the puzzle and lots of contingencies and surprises, but overall I do agree with Justice Ginsburg, Alexander Bickel, John Hart Ely, and other pro-choice legal scholars who hold that Roe ultimately harmed the pro-choice movement more than it helped.