The learned legal scholar repeats the Court’s argument in PLANNED PARENTHOOD (without acknowledging that’s what he’s doing) by saying that ROE was illegitimate judicial activism at the time, but now it would be even more activist to reverse that watershed decision. Activism, from this view, means promoting chaos but refusing to adhere to settled precedent. But judicial restraint, it seems to me, means deferring to legislative majorities unless there’s a clear constitional command not to do so, and so reversing ROE (especially incrementally) remains anti-activist. The Court would become a lot less active and so a lot less politicized as a result (as Justice Scalia repeatedly explains).
I have some sympathy for Sunstein’s complaint that many allegedly conservative critics of ROE aren’t consistently anti-activist themselves. They would be thrilled by an activist decision that nullifies all laws that have even a hint of affirmative action, and some also think that the Court should declare seemingly reasonable environmental regulations unconstitutional.
That’s why, as I explain in HOMELESS AND AT HOME IN AMERICA, that we conservatives should adhere to a pretty consistent ethic of judicial restraint. That doesn’t mean no judicial review at all: But given their, at best, very mixed record, we can safely tell our courts that a lot less might be more (in terms of really securing our constitutional system of self-government). We should look to the courts less, and ourselves more, in protecting our liberty.