http://www.theatlantic.com/doc/200605u/abortion-interview



Atlantic Unbound | May 2, 2006

Interviews


After Roe


Jeffrey Rosen, the author of the June cover story, on what Roe v. Wade
has done to the country, and what might happen without it
.....


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.

http://www.theatlantic.com/doc/200605u/abortion-interview



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http://www.theatlantic.com/doc/200605u/abortion-interview

http://www.theatlantic.com/doc/200605u/abortion-interview



Atlantic Unbound | May 2, 2006

Interviews


After Roe

http://www.theatlantic.com/doc/200605u/abortion-interview



Atlantic Unbound | May 2, 2006

Interviews


After Roe


Jeffrey Rosen, the author of the June cover story, on what Roe v. Wade
has done to the country, and what might happen without it
.....


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.

-Sara Lipka



--------------------------------------------------------------------------------



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?

Yes, alas.

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.

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.

What Will Happen After Roe v. Wade Is Repealed?

http://www.theatlantic.com/doc/200605u/abortion-interview

Atlantic Unbound | May 2, 2006

Interviews

After Roe


Jeffrey Rosen, the author of the June cover story, on what Roe v. Wade
has done to the country, and what might happen without it