Stuart Taylor has an impressive article today about the definition of judicial activism and who on the Supreme Court is really an activist. I think he is harder on conservative judges than the evidence warrants. Taylor selectively chooses cases, makes too much out of disagreements in conservative legal circles, and he repeats the errors of Paul Gewirtz in the NYT, which are corrected here and here. But, on the whole, his piece gives one much to chew on intellectually.
I do think Taylor implies a dangerous conclusion. While not coming right out and saying it, he seems to suggest that bad precedent that has gained support of the people and remains extant for some length of time should gain the blessing of the Court. I am less sure of this, although I have my sympathies with that position. My beef with the Court is that they often unsettle settled matters, such as on abortion, the death penalty, the religious clauses, homosexuality, etc. And as I've argued before, to the extent these questions become unsettled it is best for the people to figure them out, not judges. So if there is long standing precedent that has the support of the people, it's best to leave it alone.
Except that leads to some unfortunate conclusions. Take Plessy v. Ferguson (please!). By 1954 it had stood as good law for 58 years. Someone correct me if I am wrong, but I suspect that if one took a poll in 1954 Plessy would have had, at minimum, substantial (if not majority) support. Yet the Court overturned Plessy (albeit only in part) in Brown v. Board of Education. Now here is what Taylor writes about Roe v. Wade:
Or take Roe v. Wade, long assailed as judicial legislation not only by conservatives but also by many moderate and even liberal scholars; this includes many who favor making abortion broadly accessible as a matter of policy. While disputing vigorously whether Roe should be overruled, these ideologically diverse critics agree that nothing in the Constitution empowered the unelected justices to impose their own abortion policies on the nation in 1973 by sweeping aside the laws of all 50 states.
Justice Harry Blackmun's widely ridiculed opinion for the 7-2 Roe majority "is bad constitutional law, or rather ... it is not constitutional law and gives almost no sense of an obligation to try to be," wrote the late constitutional scholar John Hart Ely, an admirer of the Warren Court, in 1974. "The Court ventured too far in the change it ordered," then-Judge Ruth Bader Ginsburg, the leading feminist lawyer of the 20th century, wrote in 1985. "Even most liberal jurisprudes -- if you administer truth serum -- will tell you [Roe] is basically indefensible," wrote Edward Lazarus, a liberal Washington lawyer who clerked for Blackmun, in a recent Washington Post op-ed.
Taylor does not deny that Roe was incorrectly decided, yet he wants it upheld. Why?
Roe v. Wade continues to embitter tens of millions of Americans. But in a Gallup poll this month for CNN/USA Today, respondents said "no, not overturn," by 68 percent to 29 percent when asked: "Would you like to see the Supreme Court completely overturn its Roe v. Wade decision, or not?"
Of course there are some problems here. First, Taylor admits that "millions of Americans" were and are "embittered" by Roe (in fact, all you who hate the presence of evangelical Christians in American politics can thank Roe for inciting them to action). And here is a highly relevant passage from UVA sociologist James Davison Hunter's Before the Shooting Begins (forgive the length of the quote).
The very day Supreme Court Justice Thurgood Marshall retired from the bench in 1991, speculation about the fate of Roe v. Wade began to pick up…Peter Jennings of ABC News announced that evening the results of a new ABC/Washington Post survey showing that about six of every ten Americans favored keeping Roe v. Wade intact. On the surface his announcement seemed to provide compelling evidence to his audience for maintaining the legal status quo. But what Mr. Jennings did not say was that only about one out of every ten Americans has any real understanding of what Roe v. Wade actually mandated.
According to the Gallup survey, one out of four Americans thought Roe made abortions legal only during the first three months of pregnancy and regardless of a woman's reasons for wanting one. Another one out of six believed that the decision permitted abortions only during the first three months and only when the mother's life or health was threatened. Four percent actually believed that the decision outlawed all abortions in the United States. Finally, almost half (43%) collectively shrugged their shoulders, openly confessing their ignorance of the outcome of this landmark case. Another survey conducted by a Gallup affiliate at about the same time framed the question negatively, and the results were the same: 80 percent of those polled disagreed that abortion was available through all nine months of pregnancy, and indeed, 65% disagreed strongly!
I doubt seriously that the results of such a poll would be measurably different today. Of course the effect of Roe is to have abortion on demand for all nine months of pregnancy, as its "health" exception for proscribing late term abortions is drawn so broadly that it becomes the exception that swallows the rule. So Americans are supporting a ruling that next to none of them understand. Why should we uphold a ruling that Taylor admits is bad law and that the public is so ill informed about? I think that Justice Scalia was likely correct in his opinion in Casey that the real reason the abortion question is so contentious is that it has been left to inept courts, rather than the people, to settle a matter that has no relevance to the Constitution. I agree with Justice Scalia; if some measure of sanity is to be gained in the debate over abortion, Roe must be overturned.
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