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.
Two points.
Sunstein's argument would have been perfect for those who wanted Plessey v. Ferguson to remain valid law in the 1950s. It is interesting to note that Plessey was an older precedent when the Court reversed it in 1954 than Roe is today.
Conservatives must attempt to adhere to a philosophy of judicial restraint. That will require demanding more of the Executive and legislative branches rather than having them punt difficult questions to the Court. Unless each branch demands [and exercises] prerogatives in Constitutional decision making, the Court will continue to assert its status as the final and complete interpreter of the Constitution.
I think the limited use of judicial review is just what Hamilton had in mind in Fed #78 and likely what Marshall was up to in Marbury. I would take Jefferson's side over Sunstein's in this regard that judicial activism generates the most harm when it diminishes genuine opportunities for public deliberation at the local and state level. Roe has managed not only to generate some constitutional incoherency but also to prevent a more fruitful and less divisive debate over abortion. If Roe never happened it would still be a hot button issue and it would still function as a central fault line in the culture wars; however, we wouldn't have to constantly frame the debate in the illegitimate parameters that Roe provides, suffer from the condescending paternalism of a court decision that forestalls real moral and legislative debate, or have to live in a society that undemocratically refuses us the opportunity to fashion it in a way that reflects our moral worldview.
Might defending Roe have psychologcal importance for Sunsteain and other Progressives? For thinkers whose intellectual underpinnings are partly historical, a reversal on a major issue is a big thing to take. It points to a challenge to the notion that liberalism is, by nature, an historically evolving thing.
I have some sympathy for Sunstein’s complaint that many allegedly conservative critics of ROE aren’t consistently anti-activist themselves.
I don't. Who are these "many"? Let's see some names.