A ROLL OF THE DICE ON KEEPING 5 JUSTICES FOREVER:

The Court would be roundly criticized for the basic lack of justification undergirding Roe--and lack of an attempt at offering one. In the months immediately after Roe, progressive law professor Laurence Tribe described the Court's tweet-length rationale as "mistak[ing] a definition for a syllogism," and offering "no reason at all for what the Court has held." It is telling that despite his approval of "the direction in which Roe may take the Court," Professor Tribe devoted a 53-page article to coming up with an alternative justification for its holding.

Pro-choice Professor John Hart Ely likewise criticized Roe as "bad constitutional law . . . because it is not constitutional law and gives almost no sense of an obligation to try to be." The "fundamental right" Roe sought to protect is far from being one that is "objectively[] 'deeply rooted in this nation's history and tradition,' and 'implicit in the concept of ordered liberty'" as the Court's substantive due process analysis requires. Rather, as Ely argued "this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific issue, any general value derivable from provisions they included, or the nation's governmental structure." In short, Roe was bad law because the Court was simply making things up. And if a decision, like Roe, "lacks connection with any value the Constitution marks as special, it is not a constitutional principle and the Court has no business imposing it."

One of Justice Blackmun's clerks, Edward Lazarus, was similarly unimpressed with Roe. While Lazarus is firmly committed to the right to abortion, and even believes it can be found somewhere in the Constitution, he nonetheless opined that "[a]s a matter of constitutional interpretation and judicial method, Roe borders on the indefensible." Why? For the simple fact that the opinion has "little connection to the Constitutional right it purportedly interpreted." Whereas the Roe majority blithely announced that the right to privacy is (probably) in the Fourteenth Amendment and is broad enough to encompass abortion, Lazarus observed that any right to privacy that broad "has no meaningful foundation in constitutional text, history, or precedent--at least, it does not if those sources are fairly described and reasonably faithfully followed."

Progressive legal scholar Archibald Cox wisely predicted that Roe would always be controversial, precisely because it lacked a firm foundation. The former solicitor general criticized the Court for failing to "confront the issue in principled terms," and anticipated that "neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution." A little more than a decade later, then-Judge Ruth Bader Ginsburg echoed Cox's concerns: "Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action."

Regardless of what one thinks of the policy outcome in Roe, there is a sizable and bipartisan consensus that the judgment in Roe is simply indefensible.

Progressives' Concerns about Roe's Undermining Legislative Power

Most of Roe's defenders support its outcome and try to downplay the shaky foundation on which it rests. Professor Tribe's article and the Supreme Court's later decision in Planned Parenthood v. Casey are two leading examples of this trend. But therein lay the second major criticism, even from pro-abortion thinkers: the Court's results-oriented, policy-based decision was one better left in the hands of legislatures.

Rather than leave abortion to the political process--which Ginsburg observed "was moving in the early 1970s" toward a more liberal abortion regime--Roe put an end to that process, in dramatic fashion. After Roe, states could no longer experiment with regulations through the democratic process, but instead had to mold their statutes to fit within the frameworks developed in Roe (as amended by the plurality in Planned Parenthood v. Casey, then amended again in Whole Women's Health v. Hellerstedt, and again by the Chief Justice's concurrence in June Medical v. Russo). This limited the states' ability to react to public opinion and advances in science. Removed from the public square, abortion became a "super-protected right" controlled by five justices (sometimes three, and sometimes just one) in a country of 329 million people.

Whether the Constitution permits abortion is an open question: whether it requires a "right" to abortion is closed.

Tweet   @brothersjudd