The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I read Linda Greenhouse's latest guest essay about Dobbs so you don't have to. For Greenhouse, overruling Roe is an act of "judicial activism" and "raw power." Of course, Greenhouse is channeling Justice White's dissent that charged the Roe majority with engaging in "raw judicial power." But now, restoring this divisive issue to the political branches is itself activism. Greenhouse is living in a bizarro world where everything is backwards.
Indeed, Greenhouse channels Abraham Lincoln's "House Divided" speech, exactly backwards!
In 13 states, post-Roe anti-abortion laws will spring to life when the 1973 decision is overturned or soon after, and states are, like Oklahoma, passing new laws designed to take advantage of the opening the court is likely about to provide. Does Justice Alito know who said, "I believe this government cannot endure, permanently half slave and half free"? It was Abraham Lincoln, in his "House Divided" speech of 1858.
Lincoln was well aware of a Supreme Court decision that tried to resolve a contentious issue through judicial fiat. Of course, I speak of Dred Scott. Roe, like Dred Scott before it, asserted the power to unite the nation behind a single position. And Casey purported to "call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." These decisions utterly failed in that task. Lincoln understood all-too-well that the unelected judiciary should not be in the position of settling these matters. If our house is divided, five unelected lawyers cannot unite it.
I can do no better than quote from Justice Scalia's Casey dissent:
There is a poignant aspect to today's opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. "It is the dimension" of authority, they say, to "cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution." Ante, at 867.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself "call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution."
It is no more realistic for us in this litigation, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be "speedily and finally settled" by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
The Court should get out of this area. Lincoln would agree.