Who Put This Brake Here?


The strangest thing about Jeffrey Rosen's article in the June Atlantic Monthly, in which he projects the political fallout from repealing Roe v. Wade, is his discussion of the possible congressional response. After speculating about national legislation either restricting abortion or restricting abortion restrictions, he notes that the Supreme Court includes a few eccentrics who "believe that Congress, under the Constitution, has limited authority to regulate interstate commerce." He worries that "those justices who are most intensely committed to federalism…might decide that because abortion is a medical activity rather than a commercial one, Congress has no authority to prevent states from banning it." If those crazy federalists were to "inflame national opinion" by striking down an act of Congress guaranteeing access to early-term abortions, he writes, "it would be a brazen act of judicial activism—no less anti-democratic than Roe itself."

In the wake of Gonzales v. Raich, the intensity of the Court's commitment to federalism is questionable, to say the least. But it would be fair to say that Clarence Thomas, sometimes joined by Antonin Scalia and Anthony Kennedy, has expressed the view that the Interstate Commerce Clause does not bestow unlimited powers on Congress. In some future case not involving marijuana, Samuel Alito and John Roberts might join these three in suggesting that interstate commerce is not a synonym for everything, especially if taking that position helped them overturn a federal law barring state abortion bans. (If they have an ounce of principle, of course, they should look with equal skepticism on a federal law restricting abortion, such as the "partial birth" abortion ban they're scheduled to consider this fall.)

Rosen seems to believe Congress has unlimited authority to regulate interstate commerce, whether or not the thing being regulated actually is interstate or commerce. But that is not his main objection to overturning a federal law protecting access to abortion. His point is not that such a law ought to be upheld because it's constitutional but that it ought to be upheld because it's popular. Likewise, the problem with Roe is not that it's based on specious constitutional reasoning but that it's "anti-democratic." Throughout the article Rosen argues that the Supreme Court functions best when it goes along with what the public already wants. The title of his new book calls the courts "The Most Democratic Branch," and he means that as a compliment.

Forgive me for asking an unsophisticated question, but if the courts simply reflect the popular will, what's the point? If pure democracy is so wonderful, the Framers went to a lot of trouble to spoil a good thing, deliberately preventing the majority from always having its way. It's hard to believe Rosen really wants the Supreme Court to follow the polls, in which case it would never defend the rights of unpopular minorities. I guess I'll have to read his book to get a clearer idea of his views, but judging from this article he seems to think the courts should interpret the Constitution to mean whatever most Americans want it to mean. Even that gloss may be too generous, since the general response when the Court overturns a popular law often is not so much disagreement with its interpretation as impatience with the very idea of constitutional limits.