Judicial Activism and Abortion

Religious conservatives like to complain about "judicial activism," claiming that judges should "interpret" the law rather than "make" it. Experience teaches, however, that what religious conservatives really mean by "judicial activism" tends to boil down to simply "any decision I don't like." It's not a legal principle, it's a rhetorical device to mask their political agenda.

Ed Brayton notes with amusement the irony behind religious conservatives' opposition to Alberto Gonzales as Attorney General. Why do they object to him? Because as a judge in Texas, he refused to let his personal feelings about abortion influence his decisions in abortion cases:

[O]nce, when he was on the Texas Supreme Court, he decided that he could not overrule the Texas parental notification law for abortion without a case in front of him and had to actually follow the law rather than imposing his own pro-life views in its place. In the view of the religious right, this makes him a liberal and perhaps even a traitor. What does this have to do with judicial activism? Well, that's what conservatives are supposed to be against, isn't it?

Publius has an interesting observation on the issue: what would people's reactions be if Roe v. Wade were overturned and Congress passed a national law banning abortions? Conservatives who complain about Congress' overreaching should, if consistent, complain about this as well — after all, where in the Constitution lies the authority to ban a medical procedure? In reality it is unlikely that any would raise a peep.

I’m generally skeptical of the power of legal principles. While law sometimes exerts independent force (e.g., Hamdi), more often it merely reflects one’s underlying political preferences. For example, those who prefer unfettered free markets find Lochner in the Constitution. Those who prefer choice find Roe. Those who prefer slavery find Dred Scott. Those who prefer a weaker federal government find state sovereign immunity. Those who despise criminals read the Fourth, Fifth, Sixth, and Eighth Amendments out of the Constitution. Those who oppose the death penalty find it “cruel and unusual.” Whatever Sandra Day O’Connor personally prefers magically appears in the Constitution. And so on.

[One justification for a Congressional ban on abortions] would be Congress’s power under the Fourteenth Amendment to enforce “equal protection.” It’s not a crazy argument for conservatives to make, but only if they are willing to unmoor themselves from the principles they generally apply. For example, most originalists would argue that the Fourteenth Amendment doesn’t do that much outside of the context of race. These amendments passed after the Civil War and were clearly intended to help African-Americans, not fetuses. To decide otherwise would be to adopt the much-dreaded pragmatic “living Constitution” methodology - which, according to people like Professor Solum, will be followed by the Apocalypse and other horrors in the Book of Revelation.

[M]y guess is that if people like Scalia were evaluating a national abortion ban, they would become much less enthusiastic about the enforcement of enumerated powers under Article I. That will be the ultimate test of principle versus political preference – the test the Court so miserably failed in Bush v. Gore, when the Conservative Three abandoned federalism and welcomed an innovative expansion of the much-reviled equal protection clause (which applied only in that one case, of course).

So that’s why I’m hesitant to overturn Roe despite my jurisprudential qualms. I would be far more comfortable abandoning it if I could be assured that states – or even better, cities and counties – would be allowed to vote on it. But there’s no reason to think that will happen. And I suspect that the increasingly conservative judiciary will be hesitant to overturn it and enrage the very people responsible for getting them on the bench in the first place.

Quite often, "legal principles" acts far more like "organizing principles" for political and legal beliefs that people already have. The legal principles are used to orient them, structure them, and naturally justify them after they have already been arrived at. Acting as though the process were reversed and that the beliefs were arrived at logically and irrevocably from the principles themselves sound far more impressive, though.

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