With Roe on the books, many new abortion-related laws, some arguably proposed just to goad the courts, have been challenged and overturned. To what extent do you think Roe has created or exacerbated a power struggle between the legislature and the judiciary?
My sense is that Roe has given an excuse to legislatures to stop trying by and large. The states and Congress can pass largely symbolic partial-birth laws that fail to contain health exceptions, because they’re confident that those laws will be struck down. And there’s no attempt to engage in constitutional arguments in the legislature of the kind that used to be common in the late nineteenth and early twentieth centuries. So I worry that legislatures have gotten out of the business of debating issues related to abortion in constitutional and moral terms. If Roe were overturned, I wonder, as many people do, if fifty state legislatures, many of which are made up of part-time representatives, are really equipped to engage in passionate debate about the finer points of ontology.
People who have talked to state legislatures say that this is their worst nightmare. They just can’t imagine how overwhelmed they’d feel, barraged by activists on both sides, underpaid and overworked. There might be a paralysis or breakdown.
In your upcoming book, you call weighing threats to a woman’s health against a viable fetus’s interest in life a “quintessentially legislative judgment.” And in the Solicitor General’s petition to the Supreme Court to hear the case on the federal partial-birth abortion ban, he reminds the Court of Congress’s “nine years of hearings and debates” on abortion. Why do you think legislators are better poised than judges to resolve abortion questions?
At least in theory, legislators are better in tune with public understandings about constitutional and political issues. Public opinion about abortion is so nuanced, complicated, and ultimately moderate that one would hope that legislators could reflect those complicated balances and allow abortion to be protected in the early months but restricted—with various degrees of complicated compromises—in the later months.
But it’s possible that legislators now are so much in the thrall of interest groups’ politics that they’re no longer able to perform that delicate balancing act. Part of the fun of this futuristic scenario that I was invited to play out in the piece is to ask whether now that pro-life and pro-choice groups are pushing their Republican and Democratic legislators to the extremes, you might have situations where state legislatures and Congress are unable to represent the will of the moderate majority, and the judges are somehow better at doing so.
In some ways, that was Justice O’Connor’s legacy. She seemed to have a unique ability to put her finger on the pulse of the median voter with exquisite precision and express it more precisely than Bill Frist or Harry Reid. But that’s why the partial-birth cases to me were so frustrating. It was such an unnecessary stick in the eye of the majority of the American people who support the partial-birth laws quite enthusiastically. And the Court might have, if it had shown a little bit of humility, construed the laws to include some kind of serious health exception and avoided the backlash that ensued.
Do you think there are any sitting justices who show that kind of judicial restraint?
There’s an interesting tabulation of the number of state and federal laws that the justices are willing to strike down done by Thomas Keck in his excellent book The Most Activist Supreme Court in History. Keck notes that the most activist justice on the current court is Anthony Kennedy, who has voted to strike down more state and federal laws than any other justice. The most restrained justices are Breyer and Ginsburg. Ginsburg is most restrained of all. So if there are any justices who are heirs to the tradition of liberal judicial restraint, I think she would be closest to that model.
The strong plurality opinion and withering dissents in the Court’s 1992 Casey decision reflect the justices’ divergent views on how to treat precedent. How do you think the discussion of precedent might play out in the federal partial-birth abortion case, in terms of how its ruling addresses Roe?
That’s the $64,000 question. Chief Justice Roberts, during his confirmation hearings, made clear that he cares a lot about precedent, and many of the other justices do as well. When the Court takes up the partial-birth case next year, it’s most likely that it won’t use the case as an invitation to overturn Roe—unless a series of extraordinary events over the summer brings a new justice to the Court who’s just hell-bent on overturning it by any means necessary.
It’s likely that the Court will have a hard decision on its hands about whether to overturn a precedent decided as recently as 2000. In Casey, the Court set out a bunch of considerations for whether a precedent should be overturned, including whether the country has come to rely on the precedent, whether it’s become unworkable, and other factors like that. It’s a notoriously malleable standard; you could argue it either way. But certainly a justice who is highly skeptical of the precedent as an original matter would find it easy enough to overturn if he or she wished.
Do you think there’s a sense as to whether the protected right to abortion is a common-law precedent or a constitutional precedent?
That’s an interesting distinction. What do you have in mind?
I guess I’m wondering whether people interpret the right to abortion as a constitutional right rather than a court holding.
My sense is yes, that women and men who believe that the right to privacy is sacrosanct see it very much as a constitutional right. This includes not only Democrats, but also many pro-choice Republicans, who might have second thoughts about the G.O.P. if Roe were overturned. Now there may be a category of esoteric law professors and other people who think like me, who distinguish between Roe as a constitutional precedent and as a moral and political one, and who are not so convinced by the constitutional arguments but still think that the right to choose is terribly important as a way of guaranteeing women’s liberty and equality. But my sense is that most people don’t make those fine-grain legal distinctions, instead believing that if a right is really important, then the Constitution should protect it.
You say in the article, parenthetically, that you wouldn’t bet on Chief Justice Roberts siding with the anti-Roe forces. Why not?
I’m very impressed by Chief Justice Roberts on many levels, but especially by his devotion to precedent and to the legitimacy of the Court. He spoke very earnestly and to my mind convincingly in his confirmation hearings about how he sees the role of the chief justice as being one of stewardship—responsible for the legitimacy of the Court and the country as a whole.
I would be surprised if he were radical in any way, if he lightly embraced extremely disruptive arguments that might create broad constitutional backlashes. I’m not betting on any particular outcome either way. But my sense is that he’s a Burkean conservative rather than a libertarian radical and would think long and hard about pulling the trigger if the opportunity arose.
During the Chief Justice’s confirmation process, Senator Joe Biden said that “these hearings have become sort of a Kabuki dance.” What’s your sense of what Roe’s effect has been on judicial confirmation hearings?
It’s been a disaster. It’s distorted and unsettled confirmation politics ever since the early 1980s. It’s become the single-minded focus of every confirmation hearing, and in the process has led senators to miss far more important hints about nominees’ judicial philosophies, those that could cast far more light on the issues that they’re actually likely to confront.
The obsessive focus on Roe led the Senate to miss the fact that David Souter was a moderate conservative whose hero was Chief Justice Harlan Stone and would disappoint conservatives on a whole range of issues. Roe is just one issue, an important one, but not the only one that the Court confronts. The likelihood of it being overturned at any particular point in the future has proved to be low. After more than twenty years of confirmation hearings focused on Roe, the decision is still on the books. And the questions that justices will confront over the next thirty or forty years are so different from Roe and raise so many related issues that it’s just terribly shortsighted to be continually focused on this single matter.
Do you expect that focus will continue until it’s overturned?