The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.
The kind of extremism on display on the Planned Parenthood videotapes and in the reflexive closing of ranks around the group—whose own leadership has done more to disavow its grotesqueries, or at least the depictions of them, than have its political supporters—is the product of Roe v. Wade, but not for the reasons commonly supposed.
This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion,…
Roe v. Wade remains, for us, the most contentious decision of our Supreme Court. Here’s the advice of our Supreme Court: The opponents of Roe should get over it. In its opinion in Planned Parenthood v. Casey (1992), the Court explained:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The rare, comparable case that the Court highlights in Casey is Brown v. Board of Education. Reversing Brown and restoring the constitutionality of segregation would throw the nation into confusion and chaos. And that means that Brown has “rare precedential force.” The burden of proof that could lead to its reversal is more severe than other precedents. It would require “the most convincing justification.” The Court claimed to authoritatively resolve the controversy that produced a national division by binding the country together through a common constitutional mandate.