Robert Post and Reva Siegel of Yale Law School take a look at "Roe Rage" and judicial backlash theory, and conclude that there's little to it. Roe is controversial because abortion is controversial and is embedded in a larger set of controversial issues about sex and gender roles.
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Roe Rage
01 Aug 2007 08:43 am
Comments (22)
The fact their opening paragraph goes:
"After decades of assault on the jurisprudence of the Warren Court, many progressive legal scholars have lost faith in judicial enforcement of constitutional rights. Some have responded by embracing popular constitutionalism and advocating mobilization against the Rehnquist and Roberts Courts; others, chastened, urge a minimalist jurisprudence that will avoid giving any group offense. There is fear of provoking the kind of backlash that many associate with Roe, which is often regarded as having caused the rise of the New Right. In this article, we offer a new account of the relationship between adjudication and popular constitutionalism, which we call democratic constitutionalism. Democratic constitutionalism affirms both the need for judicially enforced rights and the fundamental significance of popular constitutional engagement."
suggests the real problem is they do not have a clue what the problems are with Roe v Wade.
Judicial enforcement of Constitutional rights? Surely we all know that people who object to Roe object to what they called Judicial invention. Democratic constitutionalism? Popular Constitutional engagement? I assume they mean making up whatever they want, pretending the public wants it too, and claiming it as a Right. Unless of course they really do mean that the Supreme Court ought to do whatever the mob wants them to. Either way, if they do not even try to grapple with the objections to Roe v Wade they won't be able to explain what went wrong and how to avoid it next time.
Damn, that abstract you linked to is one turgid piece of writing. I live in gratitude that I don't have to read that kind of cold oatmeal on a regular basis.
That said (and without having read the actual paper), I'd sure like to see some description of how Post and Siegel used to reach their conclusion. Quantitatively distinguishing between "motivated by a desire to resist authority" and "motivated by a fundamental moral position" must require some pretty interesting analytical methods.
Surely we all know that people who object to Roe object to what they called Judicial invention.
Actually, given that most opponents of Roe call themselves "originalists" and "textualists" but also support Bush v. Gore, argue that the 5th Amendment was understood in 1791 as prohibiting all racial classifications, read "another State" in the 11th Amendment to read "your own State," etc. etc. etc. it's clear that principled constitutional theories have little to do with the opposition to Roe. The public judges judicial opinions on outcomes, not their legal craftsmanship. (Which is pretty obvious, given that virtually nobody without a professional obligation to do so even reads judicial opinions.)
"Roe is controversial because abortion is controversial and is embedded in a larger set of controversial issues about sex and gender roles."
I'm not sure that why Roe is controversial matters for judicial backlash theory. Judicial backlash is an argument about the limits of the institutional capabilities of the courts. If people lose faith in the judiciary, its effectiveness as a co-equal branch of government is threatened. That seems to follow regardless of whether the reason people lose faith is good or bad.
From the abstract:
"They are each attuned to the harms that attend constitutional conflict, but they do not sufficiently consider how citizen engagement in constitutional contestation can contribute to social cohesion in a normatively heterogeneous polity."
It seems to me that the last few years constitute an experiment in the costs and benefits of a popular assault on the constitutional order. I am not convinced that the "social cohesion" that resulted was worth the "catastrophic harm to the national interest" Bush has caused, although the "social cohesion" has been impressive.
Just as an empirical matter, Moral Majority was founded to oppose the ERA, a number of years after Roe. Amending the Constitution is exactly what the "originalists" say we should be doing, too.
Posted by Scott Lemieux | August 1, 2007 9:51 AM:"Actually, given that most opponents of Roe call themselves "originalists" and "textualists" but also support Bush v. Gore"
Well Bush v Gore didn't bring out the best in anyone but the Supreme Court that heard that case does contain Originalists and they have been fairly consistent in their support for the basic idea.
Posted by Scott Lemieux | August 1, 2007 9:51 AM:"it's clear that principled constitutional theories have little to do with the opposition to Roe."
I disagree, but either way, the fact that the Court discovered a Right that few people had ever suspected before gave the opposition to Roe a handy argument and a stick with which to beat the Left with. It would have been much better if it had not been done that way.
"Roe is controversial because abortion is controversial and is embedded in a larger set of controversial issues about sex and gender roles."
Posted by Leo | August 1, 2007 9:57 AM:"It seems to me that the last few years constitute an experiment in the costs and benefits of a popular assault on the constitutional order. I am not convinced that the "social cohesion" that resulted was worth the "catastrophic harm to the national interest" Bush has caused, although the "social cohesion" has been impressive."
I don't see anything popular in Bush's decisions. But I will agree that social cohesion has been harmed. This is just an example of the Right abusing the idea that the Constitution needs to be "re-read" in line with the times just as Roe was an abuse by the Left. The obvious question is why can't Bush do it if Roe can?
Posted by David B. | August 1, 2007 9:57 AM:"Amending the Constitution is exactly what the "originalists" say we should be doing, too."
The advantage of that is that it would take a clear popular decision. Elections are good for, among other things, the fact they make every decision clear cut. We all agree to accept the outcome of the electorate, more or less. If the Constitution was amended via a popular vote no one could say they were cheated or the process was illegitimate. The Supreme Court does not have the same credibility.
The public judges judicial opinions on outcomes, not their legal craftsmanship. (Which is pretty obvious, given that virtually nobody without a professional obligation to do so even reads judicial opinions.)
Posted by Scott Lemieux | August 1, 2007 9:51 AM
Just because the public at large does not care about a judge's or a court's legal reasoning in deciding a case, doesn't mean that we in the profession should as well. Who gives a crap what the public "thinks" about anything, let alone their assessment of the merits of a particular court decision.
Even if the overwhelming majority of the public believes that Roe was correctly decided doesn't mean it was as a matter of constitutional adjudication.
And if they did, then they could use the amendment process to make abortion a true constitional right. Instead of relying on the self evident muddling reasoning of Blackman in Roe.
But in the legal academy Roe is also controversial because it (along with Griswold) is seen to have breathed life back into Lochnerism.
That's not really true. Roe is disliked in the academy mostly because it's a poorly-written opinion. In terms of jurisprudence, though, Roe and Griswold are anchored in a long line of "right of privacy" cases dating back to the early 20th century, including Meyer v. Nebraska (right to educate your child in a foreign language) and Pierce v. Society of Sisters (right to send your child to private school).
Roe may or may not be a descendant of Lochner. But is surely is seen as such by many within the academy.
Roe may or may not be a descendant of Lochner. But is surely is seen as such by many within the academy.
But is what the academy thinks really relevant? The point of backlash theory wasn't that the decision was disliked by law professors.
Even if the overwhelming majority of the public believes that Roe was correctly decided doesn't mean it was as a matter of constitutional adjudication.
Yes, but this has nothing to do with backlash theory. Law professors do not swing Presidential elections. (Also, despite Blackmun's poor opinion Roe was a perfectly plausible outcome.)
Roe v. Wade was one of a long and continuing series of cases, which reflect in constitutional and judicial terms, a general consensus in favor of individual autonomy, respected and protected by the society at large through law. It was the civil rights movement and the sexual revolution and the New Deal and the individual freedom of the 1960's reflected in a judicial mirror.
The Constitution, and, particularly the Bill of Rights and the 14th Amendment, embedded as they are, in a common law tradition, are well suited to an interpretation that implements individual autonomy protected by constitutional law. The guarantees of the 5th and 14th amendment are extremely broad, and combined in context with the 4th, 8th, 9th and 10th amendments really do suggest a framework protective of individual self-governance. This is a natural, and not at all a tortured reading.
The controversy over abortion is just a smokescreen for a collection of authoritarian movements, which hate America for its freedom. Very few of those who rail against abortion as murder are principled advocates of life; the same nutcases advocate for capital punishment and the war in Iraq.
The real impetus for the authoritarianism of the Federalist Society are the needs of a corporate elite, who want to limit the power of their customers and employees, and the related power of regulatory government. It is the electoral alliance of corporate power with an electoral block of easily manipulated psychological authoritarians, which gives abortion its political salience.
But, the corporate power does not want to actually prohibit abortion, being unsympathetic to the religious traditions involved and fearing an electoral backlash. And, the law professors, building careers on the expectation of being rewarded by business corporations and their masters, tailor their constitutional assaults accordingly. The goal is to find only a very narrow list of rights in the Constitution, and to find that those rights are enforceable only against government itself, when they are enforceable at all, which, mostly, they won't be, except on behalf of the very rich and for business corporations. This is the authoritarianism of conservative libertarians.
I don't know what the true definition of backlash theory is or who gets to define it, nor should anyone really care. Obviously abortion would have been controversial with or without Roe. Whoever's saying otherwise is wrong. However.
Roe didn't create the anti-abortion movement, but it did very little to advance the ball in the other direction. Even after Roe, it's damn near impossible for a woman to get an abortion in the few states where abortion rights are highly unpopular, even though it's technically legal. The judiciary has a very limited ability to effect social change or to change the minds of the American people, at least when it comes to highly visible, passion-arousing issues. There's a "backlash" in the sense that there's a neutralization effect. It isn't that Roe necessarily hurt the cause of abortion rights, but it also didn't really help. It was just a big zero.
Academics dislike Roe because it's based on bullshit reasoning. Maybe if Roe had had a hugely positive real-life impact on society, that wouldn't really matter. Why should the general populace care about the orderliness or the sanctity of the internal rules and logic employed by the legal profession, as long as it gets the results it wants? But its real-world impact was negligible.
JP:
Academics dislike Roe because it's based on bullshit reasoning. Maybe if Roe had had a hugely positive real-life impact on society, that wouldn't really matter. Why should the general populace care about the orderliness or the sanctity of the internal rules and logic employed by the legal profession, as long as it gets the results it wants? But its real-world impact was negligible.
Roe v. Wade does no damage to the putative "sanctity" and "orderliness" of the "internal" rules and logic of the law. What a lot of claptrap.
And, the real-world impact of the long series of rulings -- of which Roe v. Wade was one -- which outlined a zone of legal privacy supporting personal, sexual autonomy, was huge. They don't call it the Sexual Revolution for nothing.
In 1955, marriage was a license for sexual intercourse by the state, and all instances of sexual behavior outside marriage were subject to sanction. Fornication, adultery and sodomy were all subject to severe criminal sanctions. Access to birth control was commonly restricted. Movies, plays, magazines and books were censored with regard to sexual topics and content. Employment sanctions for sexual behavior were standard practice. An unmarried couple could not rent an apartment; a homosexual could not find employment in the government or a licensed profession.
Roe v. Wade was part of the whole, long series of rulings, which overturned that oppressive regime of law, replacing it with a respect for individual autonomy and restrictions on intrusive government exercises of authority.
I was using "sanctity" a little ironically, but whatever. Those decisions that you cite were more the result of social change than the cause of it. Griswold is the most extreme example. The statute overturned in that case had been long-forgotten and was never actually enforced. The Great Lawyer/Great Judge theory of American history is highly dubious.
JP:"Those decisions that you cite were more the result of social change than the cause of it."
Law and society: closely related.
Who'd have thunk it?
Social change is legal change. Try harder not to be mindless.
Moron. Two trends that share a cause/effect relationship with one another are always, by definition, "closely related." That doesn't negate the existence or the importance of the cause/effect relationship.
Seriously, WTF kind of argument is that? "Social change is legal change"? What are you, a professional fortune cookie writer? That's just embarrassing.
Roe v. Wade was part of the whole, long series of rulings, which overturned that oppressive regime of law, replacing it with a respect for individual autonomy and restrictions on intrusive government exercises of authority.
Posted by Bruce Wilder | August 1, 2007 1:10 PM
Bruce:
For conservatives, it's not the job of the federal judiciary to overturn any law that does not violate a specific provision of the Constitution. If any "regime of law" becomes too oppressive to the American people, then they can petition their elected representatives to change the law.
Your post is perfect illustration of justice activism at its worst. The Court in Roe was not interpreting the Constitution, but legislating from the bench by enacting "a respect for individual autonomy and restrictions on intrusive government exercises of authority."
Whether or not you approve of the change is not the point, but it clearly represents an overreaching by the judiciary at the expense of the elected branch of government.
I seriously doubt that these students are capable of successfully distinguishing between "Roe rage" and other factors.
This is a classic example from their abstract:
Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. During the 1970s, opponents of the Equal Rights Amendment and the school prayer decisions condemned the abortion right as an expression of "secular humanism," giving birth to the coalition politics we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state.
This is a classic distinction without a difference. When people talk about "Roe Rage" or whatever, they aren't just talking about the single case. They are talking about the fact that Roe acted as a flash point which allowed rallying resentment about the out-of-control Supreme Court. Mentioning resentment about the new innovations in church and state rulings and particularly the school prayer rulings *as if that were a counterexample* suggests that they don't understand enough about the rise of the Christian Right to know what they are talking about.
It would be like arguing against the proposition that guns kill lots of people by saying "that is a ridiculous thing to say, bullets also kill people".
Umm, yeah.
"...For conservatives, it's not the job of the federal judiciary to overturn any law that does not violate a specific provision of the Constitution. If any "regime of law" becomes too oppressive to the American people, then they can petition their elected representatives to change the law..."
And a good thing federal judges in the late 19th century upheld that idea so well with regards to racial segregation (e.g., Plessy v. Ferguson). Score one for strict constructionism!
Comments closed August 15, 2007.
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Heads in the Sand
It's true that among the population at large Roe is controversial because people disagree strongly about abortion. But in the legal academy Roe is also controversial because it (along with Griswold) is seen to have breathed life back into Lochnerism.
Posted by henry evans | August 1, 2007 9:18 AM