Against Unilateral Disarmament
By It may not come as a shock that I agree with Matt’s conclusion that Roe was correctly decided on the merits. (For those who haven’t seen it, I lay out a three-part case for Roe here, here, and here.) Matt makes another important point about the pro-choice anti-Roe crowd who base their claims not so much on doctrinal analysis as a general claim about whether courts rather than legislatures should decide “cultural issues”:
The primary motive for this, I think, is that people find it odd that such a controversial issue as abortion rights should be decided primarily by the courts. They also feel, intuitively, that it’s weird to leap so suddenly from one stance to another. I tend to agree that this is odd. The oddness, however, is right at the heart of the institution of judicial review as practiced in the United States. I’m of the opinion that this institution isn’t a great idea and that many other countries have found more satisfactory institutional mechanisms for the relationship between courts and legislatures. There’s no question, however, that strong judicial review is the system we actually have and reproductive freedom advocates have every reason to press our case vigorously through America’s actual institutions rather than act in some make-believe universe where the United States has a generally majoritarian set of political institutions.
Like Matt, I am skeptical of judicial supremacy as a normative matter, and I certainly don’t believe that it’s necessary for liberal democracy. But Roe has to be evaluated within the set of institutions the United States actually has, not the one some analysts wish we had. (Moreover, it should be noted that given the Madisionian legislative framework abandoning judicial review would not create reliably more “majoritarian” outcomes.) Liberals shouldn’t unilaterally disarm. And within this framework, Roe is a logical application of long-standing precedents that prevents bad legislation that is often arbitrary in form and in application, and it should be defended vigorously.