Constitutional Decisionmaking: How Roe Undermines the Right’s Attack on Judicial Review

The National Review offers a poll-based rebuke of the position that the Supreme Court’s 1973 decision in Roe v. Wade came too soon, and prevented rather than preceded widespread public acceptance of a woman’s right to choose.

This is actually a popular position on the left, especially in the academy; some others of us, famously Justice Ruth Bader Ginsburg, “rue Roe” for reaching the right result on the wrong doctrine. For those actually looking to set enduring precedent — and that includes us commercial litigators, a lot of the time — doctrine matters.

In any event, NRO says all this to conclude that Roe was a bolt from the blue. Republicans generally assume as much, too, when tying Roe to their wider narrative about “judicial activism.” The benefit of having gone to my law school is that I can conclusively tell you that’s wrong.

As I’ve heard it from those who clerked on the Court while Roe was sub judice, the viciousness of the immediate and continuing public reaction to Roe shocked most of the Justices in the majority, including Blackmun and Brennan, because from their perspective, Roe was a good-faith and obvious expansion of existing doctrine. Because the Court was thinking of doctrine — not politics — when they decided Roe, the majority remained largely unprepared for the immediate public backlash.

In fact, the decision suffers for that. When judges want to protect a decision, they generally do it; think Brown v. Board of Education, where Chief Justice Earl Warren went so far as to beg Justice Vinson, on his hospital bed, to drop his dissent, just to make sure the decision was unanimous. Unlike Brown, Roe shows all the signs of a case decided without a thought for politics; though its doctrinal foundation is clear, it’s weaker than alternative bases for the holding.

Taking the above into account, the Roe reaction stands for a rather different precept than the one advanced by NRO: that given the hyper-politicized background against which the Court exists, good constitutional decisionmaking involves limiting doctrine on the basis of politics. That’s the opposite of the lesson the tea party expects the Court to take, but it’s one the Court follows to this day. It is, for example, the only reason we don’t yet have clear case law on gay marriage. Gay rights are a tough political case to make, but pretty easy on the doctrine.

Conservative voters regularly insist that the Court “follow the law”… and reach conservative outcomes on that basis. But as a construct tied up with notions of equity, and a deep countermajoritarian respect for the socially disadvantaged, the law is actually a fairly liberal beast.

I would ask that conservatives choose between their competing demands — the law, or politics? — but I think their resolution of the matter is pretty clear.



  1. Could the better alternative bases (I’m assuming you mean the ones in Blackmun’s Casey dissent) really have been articulated at the time Roe was decided and gotten a majority? I did not know or suspect that.

  2. “…the tea party “


    1. You would be right if this were NY-26, where Davis actually ran on the Tea Party line!

  3. Ah, that’s an interesting point. I do mean equal protection, which Blackmun’s partial concurrence does reference, but yeah, that doctrine may not have been teed up the first time Roe came down. Equal protection didn’t solidly apply to women until the early ’70s, if I remember right, which doesn’t leave much time for Roe. I’m guessing Blackmun could’ve gotten there mentally if he wanted to, but then that wouldn’t have been a very strong doctrinal basis. Good point.

    1. Yeah, early to mid 70s. I know intermediate scrutiny was in 75 or 76, but I think a few cases found equal protection violations before that just on rational basis. Kind of like when the NAACP won equal protection cases for not being equal back when separate-but-equal was the rule, I guess.

      Actually, though, I was thinking more of the “drafting women’s bodies”/liberty element of Blackmun’s double-partial in Casey when I wrote that reply, not the equal protection element. The drafting women’s bodies argument has always resonated more with me.

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