A Misguided Experiment in Minimalism

I have an article up noting that the recent same-sex marriage cases came out pretty much the way that Ruth Bader Ginsburg retroactively wanted Roe to come out (and this may not be coincidental, since she was in the majority in both cases.) Unfortunately, Ginsburg’s argument about Roe is wrong:

First, I have never agreed with Ginsburg’s assessment of the effects of Roe, for multiple reasons. My research, as well as the research done by Linda Greenhouse and Reva Siegel, has shown that the right’s backlash against legal abortion was well underway before Roe was decided. In addition, the assumption that Roe would have been more accepted had it been decided on equal-protection grounds is extremely implausible. The public evaluates Supreme Court decisions on results, not reasoning. Roe has generally been as—or more—popular than legal pre-viability abortion in general. Finally, a “minimalist” opinion on abortion wasn’t possible in 1973. The Texas law it struck down was extreme in terms of the policy it established, but it wasn’t extreme in the sense of being an outlier. Simply striking down the Texas law would have resulted in nearly identical laws in more than 30 other states being struck down too. It’s hard to imagine this turn of events would not have made abortion a major source of political dispute.

The fundamental problem with all such “backlash” arguments is that, because judicial opinions don’t actually generate any more backlash than policy judgments announced by other institutions, the only way to avoid backlash is just by not winning. Pro-choicers who agree with Ginsburg’s take on Roe are far too optimistic about what abortion policy would have looked like without it. Contrary to conventional wisdom, effective opposition to legalizing abortion had stopped the state legalization drive in its tracks by 1971. For the reasons I outlined recently, I think many same-sex marriage supporters are being somewhat over-optimistic. Even if same-sex marriage continues to gain public support, bans on same-sex marriage are likely to remain durable in many state legislatures, where the status quo almost always has a major institutional advantage. Without a Supreme Court opinion ruling bans on same-sex marriage unconstitutional, it is likely that gays and lesbians in many states will be denied their fundamental marriage rights for a long time.