Since Roe, interest groups and many politicians have been obsessed with whether judicial nominees are pro-life or pro-choice. Do you think that has contributed to a polarization between the sort of judicial restraint you mentioned and more results-oriented judging?
Yes. There’s no consistent constituency for bipartisan judicial restraint in either the G.O.P. or the Democratic Party. Republican orthodoxy calls for the overturning of Roe, but it also expresses great skepticism about the state and federal laws that regulate the economy and is willing to resurrect economic judicial activism with a vengeance. The Democrats are falling all over themselves to defend deference when it comes to economic regulation but are also desperately trying not only to preserve Roe but to create constitutional rights to gay marriage.
It’s frustrating that bipartisan restraint has so little constituency today. Right now it’s the providence of a small and esoteric group of journalists and law professors. But we’re a hearty band and we’d be delighted to have allies at any time, so please join us.
Maybe I will. Under what circumstances could you expect a move toward more bipartisan judicial restraint?
Only if there’s a political constituency for it. The reason it was briefly embraced by liberals and conservatives in the middle of the twentieth century was because of the New Deal. When the old court tried to strike down the New Deal, economic judicial restraint became a matter of urgent national importance, and because people supported it, justices were appointed to embody it. Conservatives discovered its merits in the 1960s, because they were frustrated with the perceived excesses of the Warren court in cases involving civil liberties and individual rights.
But it quickly became clear that for both sides this embrace of bipartisan restraint was incomplete and opportunistic, and as soon as Republicans got in control they dropped half the equation and rediscovered the virtues of economic judicial activism. The last consistently restrained judge on the Supreme Court was Justice Byron White, the Kennedy Democrat, who found very few laws that he wasn’t willing to uphold. And blessed be his memory.
You talk about how the current drama in South Dakota—a nearly total ban on abortion, a proposed referendum, legislators switching parties, a voter insurrection—is the best predictor of what might happen in other states after Roe. But do you think more moderate legislators or governors will try to steer the extreme minorities in a more pragmatic direction?
South Dakota is such an interesting example because I gather it’s not among the most conservative of states. It has a libertarian tradition. The Senate was Democratic in the 1970s, and it’s not in the Deep South. So the fact that South Dakota’s legislature, even though it was repeatedly warned by moderates, passed a law that appears to be out of line with what a majority of the state wanted, and the governor signed it even though his popularity would suffer as a result, suggests the pathologies of base politics that might infect other states, with similar electoral disasters.
If, in a post-Roe world, Republicans and Democrats continue to cater to their bases, with the former not considering exceptions to an abortion ban and the latter not tolerating restrictions like notification procedures or waiting periods, what’s the possibility of a third party emerging?
It seems strong. The majority in America can’t be thwarted forever, and if the existing political parties resolutely refuse to represent the wishes of a moderate majority, we’d expect third parties to arise. This happened during the Civil War, when the Democratic Party committed suicide by defending the property rights of slaveholders that a majority of the country, as well as many states, rejected. And you could well imagine it happening today.
Do you think we might see at some point a constitutional amendment that somehow addresses either protecting or restricting abortion?
We might, and I’m sure that an amendment on both sides would be introduced, but of course they’re awfully hard to pass. You need two-thirds of both houses of Congress to propose it and three quarters of the state legislatures to ratify it. If Congress, because of gerrymandering and interest group politics, is unable even to pass ordinary statutes that codify the moderate consensus about abortion, getting a two thirds majority would be even harder.
The only scenario I could imagine is if at some point in the future Congress did in fact pass a moderate national law protecting early-term abortions and restricting late-term abortions, and a conservative activist Supreme Court struck that down as exceeding Congress’s power to regulate commerce. That would be an act of brazen judicial activism, and I can imagine that possibly provoking enough of a backlash to rouse two-thirds of both Houses to propose an amendment. Of course ratification would take a long time and what would ultimately happen is anyone’s guess.
What effect do you think the Terri Schiavo case had on the abortion debate?
It certainly revealed the inability of Congress to reflect what people think about important cases involving life and death. The fact that 80 percent of the country opposed Congress’s intervention is a striking and dramatic reminder of the fact that this Congress may be more concerned about pleasing its base than pleasing the nation. Polls after Schiavo also suggested that people have far less confidence in Congress than they do in the president and the courts. So it’s a cautionary tale, suggesting that if the abortion issue were to get sent back to the legislatures, it’s not at all clear that Congress is ready, willing, and able right now to represent the wishes of the nation.
Do you think that more than three decades of impassioned public debate have turned abortion into more of a moral issue than a constitutional one, even in the courtroom?
I think for citizens, abortion will always be a moral issue, because it’s so wrenching. But the courts have been legitimately criticized for failing to be sensitive to procedural questions, namely, not what’s the right answer, but who should decide it.
But you do see some of the morality in the angry, indignant dissenting opinions of justices Scalia and Thomas. Scalia in the Casey case is filled with moral fervor and indignation. He makes it clear that he sees the Court’s decision not only as a constitutional but a moral abomination. It’s very interesting to contrast Scalia’s dissent with Chief Justice Rehnquist’s far more laconic and procedural dissent in the original Roe case, where he made clear, You know, I’m not going to tell you what I think about this—I really don’t feel all that strongly about it—I just think that democratic majorities should decide.
In Rehnquist’s dissent there’s nothing of the apocalyptic sense of moral catastrophe at the gates that you get out of Scalia. I worry that Scalia's brand of passionate engagement might indeed infect many more judicial decisions if Roe were off the table. Once judges get their personal passions engaged, they’re likely to be just as hot-tempered and susceptible to fuzzy thinking as the rest of us.