Patterico's Pontifications


Overruling Roe with an Incrementalist Approach

Filed under: Abortion,Judiciary — Patterico @ 10:45 am

Judge Alito has been described in numerous reports as a cautious and conservative jurist, respectful of precedent and deferential to government. What does this signify for the prospects that he might be a vote against Roe v. Wade? It’s tough to say.

Judge Alito’s conservative record strongly suggests that he would be unwilling to read new rights into the Constitution. But his cautiousness also suggests the possibility that he could be reluctant to overturn a precedent like Roe.

Incidentally, the same holds true of John Roberts. Both Roberts and Alito are brilliant and accomplished jurists. In broad strokes, they share President Bush’s philosophy of judicial restraint and conservatism. Conservatives have no business opposing them. But neither judge is a clear vote to overturn Roe.

Even if Justices Alito and Roberts don’t come flying out of the gate signaling a willingness to overturn Roe at the first available opportunity, I don’t think judicial conservatives should panic. Even if that happens, there is still room for hope — even for those of us who agree with Robert Bork that “overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence.”

I take a backseat to no-one in my desire to see the stain of Roe removed from the Court’s set of constitutional precedents. This is primarily a concern for the integrity of constitutional jurisprudence, rather than a simple desire to see an end to abortion on demand. While I think reasonable people can disagree as to whether there should be abortion rights under some circumstances, I don’t think that rational and informed observers can deny two facts.

First, Roe was an act of pure judicial legislation by judges who were more concerned with their policy preferences than with properly interpreting the Constitution. This conclusion is supported by the structure of the decision, which created a trimester framework out of thin air, as well as by historical accounts of how individual Justices came to their decisions (see here and here for examples). The Court’s jurisprudence suffers every day that it continues to defend its decision to resolve an “intensely divisive controversy” without constitutional authority to do so.

Second, the constitutionalization of abortion law by Roe and its progeny has led to a set of abortion rights far more expansive than would otherwise exist. The horror of partial-birth abortion offends the majority of Americans, who also support reasonable restrictions on abortion that have been struck down by the courts, such as spousal notification laws of the sort upheld by Judge Alito in his Casey dissent.

So, I fully agree with Robert Bork: Roe must be overruled. The only question is how. And with the makeup of the Court we have now, my guess is that an incrementalist approach will be required.

Don’t get me wrong. Even if the Court were to reverse Roe in an intensely partisan 5-4 decision achieved simply because Republican presidents managed to get enough conservatives on the Court, that would be a good thing, in my view. However, there would clearly be political downsides, because the nation would likely see such a decision as a disaster. Rather than focus on the original decision’s total lack of legitimacy, the media (and the voting public) would dwell on the fact that the reversal was by a thin margin, without a substantial set of intervening factors explaining the about-face. This could lead to overwhelming election returns against Republicans, weakening the judiciary as a whole for years to come.

But if we allow the change to take place incrementally, it may be acceptable to the public. Rather than exploding Roe with a 5-4 decision — the judicial equivalent of dynamite — it may be preferable to simply let termites eat away at Roe until it collapses on its own.

This is a slight variant on an argument made by my former Con Law professor Jack Balkin (a staunch liberal and abortion-rights supporter), who has argued that “the issue is not whether Roe is overruled. The issue is whether it is hollowed out and made practically irrelevant.” I’d put it a little differently: if, over time, Roe is “hollowed out and made practically irrelevant,” it will become ripe for overruling. And the reversal will come as less of a shock to the country.

The incrementalist approach may take far longer, but if this is the only way to get the job done, then we judicial conservatives may need to reconcile ourselves to reality. Judges like Alito and Roberts may not be ready with the dynamite, but I think they stand ready to start hollowing Roe out. I think small gains may be made this term — but I predict they will be small gains indeed. The results may even end up feeling like a defeat — unless you take the long view.

P.S. Given time, I will do a post in the next few days that examines the two abortion cases likely to be heard by the Court this term, and discusses the likely outcomes given the confirmation of a Justice Alito.

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