Ramesh Ponnuru discusses Jeffrey Rosen’s Atlantic cover essay, which isn’t available on-line. But this interview is (hat tip: RCP).
In it, Rosen claims to be a proponent of bipartisan judicial restraint, as, he says, Justice Byron White was. White, of course, dissented in Roe for reasons that Ponnuru would, I think, applaud.
Some of Rosen’s comments in the interview are a little odd, as when he said that Sandra Day O’Connor "seemed to have a unique ability to put her finger on the pulse of the median voter with exquisite precision and express it more precisely than Bill Frist or Harry Reid" and when he suggests that Chief Justice Roberts is no "libertarian radical" willing to pull the trigger on Roe. I agree that the CJ is no libertarian radical, but libertarianism seems to me to be the essence of much of the "pro-choice," "pro-self-definition" jurisprudence committed by members of the Supreme Court. Libertarians would, I think, vote to uphold Roe, so Rosen’s choice of an appellation seems off.
Update: I stand (somewhat) corrected by John Moser’s comment below. For a summary of the libertarian case against Roe, go here. On the other hand, the, er. vulgar libertarianism of my students generally tends in a pro-choice direction, whatever may be the case with their sophisticated and officially Libertarian brethren.
Libertarians are divided as to whether abortion should be illegal; nevertheless, most of the libertarians whom I know (and, having worked for three years at the Institute for Humane Studies, I know quite a few) view Roe as a bad decision in any event.
Building on John’s point, I have heard Richard Epstein--perhaps the leading libertarian law professor in the country--make the argument that if you apply the twin libertarian justifications for governmental action--prevention of force and prevention of fraud--to the context of abortion, then state action limiting abortion could be consistent with libertarian principles insofar as such regulations would restrict force against those members of society who are least capable of protecting themselves.
I agree that libertarians are divided on ROE. But the "lost Constitution" man, Randy Barnett, affirms the activist argument of Kennedy in LAWRENCE, hoping that it will eventually be applied consistently by an activist Court to protect individual rights in all its dimensions. So he’s pro-Lochner, pro-Roe, and anti-Wickard.
Barnett’s ideal libertarian Court would easily be the most activist Court in history. So I do think there is something to Rosen’s position. Barnett shows us "consistent judicial activism," opposing it might really be "consistent judicial restraint."