WHEN THE JUDICIAL VIOLATES THE SEPARATION OF POWERS:

As I listened to almost two hours of oral argument in Dobbs v. Jackson Women's Health, a case challenging Mississippi's ban on abortions after 15 weeks, I kept returning to a single thought: Ruth Bader Ginsburg was right. She accurately identified the inherent instability of Roe v. Wade. Because of that instability, it is now quite possible that Roe will be overturned and the ultimate legality of abortion rights will be decided by legislatures, not justices.  

When I say "Ginsburg was right," I'm referring specifically to fascinating comments she made during a Madison Lecture at New York University in 1992, the year before Bill Clinton nominated her to serve on the Supreme Court. In a section of her lecture devoted to "measured motions in third branch decisionmaking," she made two observations of enduring significance.

First, she quoted Justice Oliver Wendell Holmes, who argued that "judges do and must legislate," but they must do so "only interstitially; they are confined from molar to molecular motions." In plain language this means that judges don't merely interpret laws, they write laws, but when they do so, they should do so slowly and cautiously. Otherwise, as Ginsburg argued, "Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable."

Second, as her prime example of this principle, she chose Roe v. Wade, a precedent she called "breathtaking" and contrasted directly with the Court's "more cautious dispositions" in cases "contemporaneous with Roe" that involved questions of sex discrimination. She noted that the Roe Court did not have to rewrite all of the nation's abortion laws at a stroke. There was a narrower path, and that narrower path may have been more prudent.

Tweet   @brothersjudd