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.
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?
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.