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David Kaplan: Roe v. Wade Shows the Court is ‘too powerful’

Published just after the Kavanaugh hearings, David Kaplan’s book, The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution, is the newest criticism of the Rehnquist and Roberts Courts by a liberal legal commentator. His major theme is that the Supreme Court has become too powerful.

While conservatives will dispute some of Kaplan’s points, what’s surprising is that Kaplan—a former legal affairs editor at Newsweek—uses Roe v. Wade to make his case in a chapter entitled “The Runaway Court.” Kaplan writes that Roe signified the clearest entry of the Court…into what became known as the culture wars. It helped solidify the realignment of the major political parties…and it recast sedate Court confirmation hearings for the next four decades and counting. Roe v. Wade also was an inflection point for the Court itself—when the justices needlessly placed themselves in the middle of a matter best left to the democratically accountable branches. It was the moment that inaugurated the modern triumphalism of the Court—making it the most dangerous branch, and, in so doing, undermining its legitimacy.

It would be hard to find another liberal journalist in the past two decades saying that Roe undermined the Court’s legitimacy. But Kaplan backs this up with numerous specific criticisms.

Roe was unprincipled. “Roe v. Wade illustrated what happened when the patina of principle, developed over many years…disappeared from a ruling.” Roe “declared abortion a constitutional right ipse dixit….” (Ipse dixit is an assertion based solely on the authority of the declarant.) Roe “discovered a right where none was obvious in the Constitution—when it would have been better to defer to other branches.”

Roe was arrogant. Blackmun gave only a “hint of humility.” Roe would “devise detailed regulations, as if Blackmun had become a hospital administrator.” And Blackmun’s thinking about future cases was forever affected, according to Kaplan, by whether “damage to Roe” was at risk, a concern that “had come to dominate his thinking on any case that could be used to impugn” Roe.

Roe was arbitrary. Kaplan concludes, from a review of the Justices’ personal papers, that “the written negotiations between Blackmun and his colleagues had all the attributes of a legislative markup.”

Roe was unprecedented.

[A]s a matter of constitutional law, [Roe] was preposterous. There are various doctrinal containers on the ship of judicial interpretation: deference to other governmental branches; respect for legislatures as laboratories of experimentation; conscientious analogy to past rulings when recognizing new rights; an inclination toward the narrow over the broad; and fidelity to neutral principles, regardless of the result they dictate in a particular case. The canons are general and can even be in conflict: Deference, for example, can collide with neutral principles that necessitate judicial action. But Blackmun tossed all of them overboard.

Kaplan notes that Roe “was so unimpressive in constitutional grounding that a cottage industry developed around rehabilitating it….”

Kaplan disputes Blackmun’s reasoning that abortion falls within a right to privacy. “A doctor’s office, regulated by the grant of a state license, may be private, but it’s not akin to the bedroom.” And, “saying that the right ‘was broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’ didn’t begin to constitute an argument.”

Kaplan skillfully renews the classic criticisms of Roe by Alexander Bickel and law professor John Hart Ely. Ely’s 1973 article, “The Wages of Crying Wolf” was one of the most influential critiques of Roe. Ely was followed by “a legion of scholarly critics in the decades since.” As Ely emphasized, Kaplan asks “Why was viability the ‘magic moment’ at which a state’s interest in the fetus prevailed?….in his own notes, Blackmun acknowledged that a constitutional rule built on trimesters was ‘arbitrary.’”

Kaplan also argues that Brown v. Board of Education is not a judicial foundation for Roe, as some Roe apologists have claimed. Instead, Brown and Roe represent a stark contrast between effective and foolish uses of judicial authority. “Roe yielded a different dynamic. After the ruling, the country’s divisions over abortion—reflected in polls, political campaigns, and legislative reform or lack of it—continued. Most important, the acrimony pivoted toward the Court.”

The enduring politicization of the Court far exceeded what happened to it after Brown v. Board of Education or, for that matter, after Dred Scott. That politicization alone undercut the claim by Roe apologists that ideological and party realignment already underway meant the ruling didn’t have far-reaching ramifications.

A particularly useful part of this new book is that Kaplan counters the claims of Roe’s apologists that political “backlash” against abortion wasn’t due to Roe but wouldn’t have happened even without Roe. Kaplan argues at length that Roe was politically inflammatory. “Roe turned the Court into a storm center ever after, though it took two presidential cycles for the corrosive effects to set in.” Blackmun “misread its lasting repercussions.” Kaplan recognizes that Roe “would remake the country’s politics and judiciary.”

Kaplan reaffirms, as others have said before, that “[b]y banishing the moral debate from the political forum where it was best ventilated and where the loser recognized that tomorrow was another day, the justices in Roe shut off that safety valve in a democracy.” (This was Justice Scalia’s charge in his dissent in Planned Parenthood v. Casey in 1992, though Kaplan doesn’t credit Scalia.)

Kaplan also disputes the claim, made by Laurence Tribe and others, that Roe was itself a political compromise. “After Roe, of course, most pro-life legislative lobbying would be pointless…the core issue of its legality had been taken off the table. In the face of an imperious Court, legislators were now irrelevant—and they knew it.”

Kaplan discounts the notion that the Court’s decision in Planned Parenthood v. Casey rehabilitated Roe. The plurality of O’Connor, Kennedy and Souter drew an analogy between Brown and Roe that was “ludicrous…[H]aving thrust itself into the political muck 19 years earlier, the Court now had no option but to remain mired, lest it appear to yield to the stresses it inevitably faced as a result of its initial choice.” And subsequent cases showed “just how malleable—and flawed—the ‘undue burden’ standard of Casey was in practice.”

Finally, Kaplan recognizes that Roe has had a negative impact on the judicial nomination process since 1973. Roe has “up[ed] the ante for each future seat on the Court.” Prior to Roe, state legislatures were the focus of campaigns over abortion. With Roe, those passions were re-directed at the Court and at future nominations. Roe “turn[ed] Senate confirmation hearings on Court nominations into proxies on Roe.” And with Roe, “[t]he enduring politicization of the Court far exceeded what happened to it after Brown….”

Despite Kaplan’s insightful criticisms of Roe and Casey, he fails somehow to recognize the dangers in Justice Ruth Bader Ginsburg’s judicial approach to abortion. As a federal appeals court judge in 1992, Ginsburg published a law review article critical of Roe several months before President Clinton nominated her to the Court in 1993, perhaps as a means to cast her as a judicial “moderate” in hopes of getting a nomination. But, once on the Court, Justice Ginsburg shelved the doubts in her article and sought to sink Roe in judicial cement and extend its reach in shutting down any legislative limits on abortion across the country.

By seeking to find a new constitutional “home” for Roe in the Equal Protection Clause of the Fourteenth Amendment, Ginsburg would make Roe more extreme, not less, by requiring state and federal funding of abortion (overturning Harris v. McRae (1980)), by eliminating any state protection for fetal life, and by preventing any legislative protection for maternal health unless states strictly applied the same regulations to other gynecological procedures. Despite the fact that Ginsburg’s refashioning of Roe would completely shut down state regulation of abortion, Kaplan gives a pass to Ginsburg’s contradictions. Kaplan fails to see that Ginsburg’s approach is exactly the opposite of what he proposes.

With Justice Kennedy’s retirement, Kaplan believes that “Roe now faces its greatest danger since Casey in 1992.” Hopefully, Justice Ginsburg’s proposal to expand Roe has become, with the new Court majority, a fading possibility, at the very least.

Clarke Forsythe is Senior Counsel at Americans United for Life and author of Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013) and of “A Draft Opinion Overruling Roe v. Wade,” published in September 2018 by the Georgetown Journal of Law & Public Policy.