Matthew Yglesias may have a sense that his defense of Roe v. Wade – all arguments that it is “legally dodgy . . . ought to be resisted” – is less than dispositive. He decides to outsource this bit of work, directing his readers to Scott Lemieux’s defense of Roe. If you’re going to succeed as a general contractor, though, you need to choose your subcontractors more carefully.
Lemieux, a political scientist at Hunter College, shows himself to be an unembarrassed practitioner of what Sanford Levinson derides as the “happy endings” school of constitutional interpretation: You decide what policy result you want to effect, then grab hold of any and every argument that shows your happy ending is mandated by the Constitution. Lemieux’s policy goal is legalized abortion, and he is not fastidious about resorting to any argument that shows the Constitution requiring it.
His defense of the democratic legitimacy of Roe – the justice and necessity of the Supreme Court removing abortion from the purview of elected legislators so that only life-tenured federal judges would determine policy – is particularly weak. Lemieux relies on Justice Harlan Stone’s suggestion that “prejudice against discrete and insular minorities” might leave their rights unprotected by “political processes” and may, therefore, call for “more searching judicial inquiry.” The democratic legitimacy of Roe, according to Lemieux, is based on the idea that women cannot protect their interests in the legislatures so the courts have to intercede to protect them.
Lemieux takes note of the strongest argument against this claim, which was put forward the late John Hart Ely, but doesn’t really grapple with it. Ely’s politics were pro-choice: “Were I a legislator I would vote for a statute very much like the one the Court ends up drafting,” in Roe. But he considered Roe “a very bad decision,” because “it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
If Lemieux, and Yglesias, want to carry the point that the need overcome gender discrimination establishes the democratic legitimacy of Roe, they’ll need to do more than point out that women have been discriminated against and are under-represented in legislative bodies. They’ll need to respond to this argument by Ely: “Compared with men, very few women sit in our legislatures, a fact I believe should bear some relevance—even without an Equal Rights Amendment—to the appropriate standard of review for legislation that favors men over women. But no fetuses sit in our legislatures. Of course they have their champions, but so have women. The two interests have clashed repeatedly in the political arena, and had continued to do so up to the date of the opinion, generating quite a wide variety of accommodations. By the Court’s lights virtually all of the legislative accommodations had unduly favored fetuses; by its definition of victory, women had lost. Yet in every legislative balance one of the competing interests loses to some extent; indeed usually, as here, they both do. On some occasions the Constitution throws its weight on the side of one of them, indicating the balance must be restruck. And on others—and this is Justice Stone’s suggestion—it is at least arguable that, constitutional directive or not, the Court should throw its weight on the side of a minority demanding in court more than it was able to achieve politically. But even assuming this suggestion can be given principled content, it was clearly intended and should be reserved for those interests which, as compared with the interests to which they have been subordinated, constitute minorities unusually incapable of protecting themselves. Compared with men, women may constitute such a ’minority’; compared with the unborn, they do not. I’m not sure I’d know a discrete and insular minority if I saw one, but confronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I’d expect no credit for the former answer.”