Partial-birth abortion and the perils of constitutional common law

Harvard Journal of Law and Public Policy

Volumn 31, Issue 2, 2008, Pages 519-591

  Pushaw Jr , Robert J ^a  

^a PEPPERDINE UNIVERSITY   (United States)

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EID: 46149100062     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (453)

1. 127 S. Ct. 1610 (2007).
2. 18 U.S.C. § 1531(a) (2003).
3. Gonzales, 127 S. Ct. at 1619-39.
4. Id. at 1639-40 (Thomas, J., concurring).
5. Id. at 1640-53 (Ginsburg, J., dissenting) (citing Stenberg v. Carhart, 530 U.S. 914 (2000)).
6. See infra Part II.B.3.b.
7. See Chief Justice Says His Goal is More Consensus on Court, N.Y. TIMES, May 22, 2006, at A16.
8. See infra notes 341-85 and accompanying text.
9. See infra Part III (developing this theme).
10. See infra Part II.B.3.b (discussing this aggrandizement of federal power).
11. Many scholars have observed that modern constitutional law has departed substantially and irreversibly from our founding document's text and original meaning and that, in practice, constitutional interpretation depends upon evolving understandings expressed in Supreme Court opinions. See, e.g., Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723 (1988) (summarizing relevant cases and scholarship, and reluctantly concluding that the original meaning must yield to transformative or longstanding precedent);
12. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996) (amplifying these themes and contending that a common law methodology constrains judges more effectively than textualism or originalism and better promotes democratic values);
13. Thomas W. Merrill, Originalism, Stare Decisis and the Promotion of Judicial Restraint, 22 CONST. COMMENT. 271 (2005) (defending Strauss's position).
14. But see Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 COLUM. L. REV. 1482 (2007) (maintaining that arguments for the rationality of ordinary common law - where the only alternative to respecting the latent wisdom embodied in precedent is for judges to rely on their own unaided reason - do not apply to constitutional law, where courts have the option of deferring to the considered judgment of collective bodies such as the Constitution's Framers, legislatures, or the executive branch). I agree that, as a descriptive matter, constitutional law consists of judicially fashioned principles that have scant textual or historical basis. Nonetheless, I do not think that this situation is normatively desirable or that precedent restrains the Justices. The Court's partial-birth abortion jurisprudence illustrates why.
15. The classic works are OLIVER WENDELL HOLMES, THE COMMON LAW (1881);
16. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921);
17. and KARL LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960).
18. See, e.g., Strauss, supra note 11, at 879, 885, 887, 891-94; see also Monaghan, supra note 11, at 741, 757-58 (describing the traditional American conception of stare decisis as precedent that remains binding unless there is a showing of substantial countervailing considerations, but noting that this doctrine has been weakened by the modern pragmatic view of law, which is skeptical of simple appeals to authority and instead demands that rules be justified).
19. For example, if the California legislature imposes a $250,000 cap on medical malpractice damages, the state's courts cannot ignore this statute and instead approve a larger award as consistent with the general "spirit" or "values" of tort law.
20. See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (overruling entrenched precedent by holding that Congress could enact legislation governing non-commercial activity occurring within a state, such as labor, if doing so was necessary and proper to regulate interstate commerce).
21. See Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control Over Social Issues, 85 IOWA L. REV. 1, 79-83 (1999).
22. See William P. Marshall, Constitutional Law as Political Spoils, 26 CARDOZO L. REV. 525, 525 (2005).
23. Most significantly for present purposes, the Court revived the long-discredited notion that the Due Process Clause (especially the word "liberty") licensed it to create substantive rights (e.g., to privacy). See Griswold v. Connecticut, 381 U.S. 479 (1965) (discussed infra Part I.A.). The Court also imposed its vision of liberty by dramatically expanding First Amendment freedoms and the rights of accused criminals under the Fourth, Fifth, Sixth, and Fourteenth Amendments. See infra notes 339-40 and accompanying text. The Warren Court's two most important decisions concerned equality. First, Brown v. Board of Education, 347 U.S. 483 (1954), overturned precedent by holding that the Equal Protection Clause prohibited racial discrimination in public schools. The Court candidly acknowledged that it was interpreting this clause in light of evolving notions of racial justice and the importance of public education, not historical constitutional understandings. See id. at 492-93. Chief Justice Warren wisely wrote a short opinion that garnered a unanimous vote; his policy judgment proved to be correct and was vindicated by Congress within a decade. See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified in scattered sections of 42 U.S.C.). Second, in Baker v. Carr, 369 U.S. 186 (1962), the Court made the novel decision to apply the Equal Protection Clause, originally designed to protect civil rights, to the formerly political question of ensuring that the apportionment of state legislatures was based strictly on population. See infra notes 24, 338, 398 and accompanying text. Despite its shaky legal foundation, Baker spawned a "one person, one vote" standard that resonated with Americans and quickly gained widespread acceptance. See Robert J. Pushaw, Jr., Bush v. Gore: Looking at Baker v. Carr in a Conservative Mirror, 18 CONST. COMMENT. 359, 372-81 (2001) (summarizing Baker, 369 U.S. 186, Gray v. Sanders, 372 U.S. 368 (1963), Wesberry v. Sanders, 376 U.S. 1 (1964), Reynolds v. Sims, 377 U.S. 533 (1964), and the positive reaction to them). Justice Brennan, who wrote the majority opinion in Baker, repudiated the idea that modern constitutional problems should be resolved by relying upon the views of the Framers and Ratifiers. Rather, he contended that the Constitution sets forth generally worded provisions that the Justices must continually reinterpret in light of evolving notions of justice, morality, and social progress. See Justice William J. Brennan, Jr., To the Text and Teaching Symposium, Georgetown University (Oct. 12, 1985), in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 11-25 (Paul G. Cassell ed., 1986). Most constitutional law scholars have embraced this concept of a "living Constitution."
24. See, e.g., ERWIN CHEMERINSKY, INTERPRETING THE CONSTITUTION 45-141 (1987).
25. 410 U.S. 113 (1973) (establishing a right to abortion). Other examples include Bush v. Gore, 531 U.S. 98 (2000) (per curiam) (creating a new equal protection right to have ballots in a presidential election recount judged according to uniform criteria), and Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 (1986), which rejected the claim that the Due Process Clause contains a right of privacy that encompasses the freedom of consenting adults to engage in homosexual sodomy).
26. For example, Justice Stewart dissented when the Court devised a right to privacy in Griswold, but later joined the Roe majority in extending that right to abortion. See infra notes 50, 54, 75 and accompanying text. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), Justices O'Connor, Kennedy, and Souter wrote an unusual joint opinion reaffirming Roe's basic holding of a right to abortion previability, but added significant qualifications to better accommodate states' legitimate interests. Id. at 844-901 (plurality opinion). The lesson of history is that, if five or more Justices ignore precedent and create a new constitutional right, they can be fairly confident that it will stick - primarily because some later Justices will have greater respect for precedent.
27. See, e.g., Casey, 505 U.S. at 854-64 (plurality opinion) (citing fidelity to precedent and related concerns that too-frequent overrulings will damage the Court's integrity and hence public confidence in the institution).
28. For instance, a Justice might follow precedent to foster collegiality or to promote the policy embedded in an earlier case, regardless of the soundness of its legal analysis. Some commentators have suggested that certain Justices might adhere to a precedent like Roe that is popular among the legal and media intelligentsia in order to curry their favor. Although such speculation seems pointless because it is impossible to prove, the very fact that such charges can plausibly be made is itself deeply troubling.
29. See infra notes 115-19, 123-24, 149-50, 199-205 and accompanying text (describing the efforts of the Roe dissenters and Justices Scalia and Thomas to overturn its holding).
30. See, e.g., United States v. Scott, 437 U.S. 82, 101 (1978) (citing Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-08 (1932) (Brandeis, J., dissenting)) ("'In cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.'"); Agostini v. Felton, 521 U.S. 203, 235-36 (1997) (to similar effect). Several scholars have argued that constitutional law precedents should be overruled if the Court concludes that they are legally erroneous, particularly if they conflict with the Constitution's original meaning. See, e.g., Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 CONST. COMMENT. 257 (2005);
31. Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23 (1994);
32. Michael Stokes Paulsen, The Instrinsically Corrupting Influence of Precedent, 22 CONST. COMMENT. 289 (2005). Other professors, however, have maintained that the Court must stand by its prior cases unless they are not merely wrong but also have substantial adverse consequences - for example, have proved to be morally unacceptable or unworkable. See, e.g., Monaghan, supra note 11, at 743-47, 758-62; Strauss, supra note 11, at 894-97, 900-09, 913-14, 927-28, 935. In practice, stare decisis exerts real force in certain areas, especially if the seminal decision has been widely accepted and reaffirmed over a time period lengthy enough that reversing course would exact serious costs in terms of legal stability, continuity, and governmental legitimacy. Obvious examples include the Court's New Deal-era judgments endorsing the modern administrative-social welfare state, and Warren Court cases like Brown and Baker. See Monaghan, supra note 11, at 748-62, 772. Overruling such entrenched landmarks would be unthinkable, even by Justices who conclude that the original decision rested on an erroneous interpretation of the Constitution's text, history, structure, and then-existing precedent. See id. at 743-47 (contending that the Court's endorsement of such cases casts doubt upon the conventional wisdom that stare decisis has minimal applicability in constitutional law). Professor Monaghan has argued that the Court should determine the meaning of the Constitution both by examining original intent and by applying established precedent - including specific cases that cannot be justified on originalist grounds, such as Griswold and Roe.
33. See Henry P. Monaghan, Our Perfect Constitution, 56 NYU L. REV. 353, 360, 363, 374-87 (1981). Nonetheless, he would prevent future departures from the written Constitution by rejecting a common law mode of analysis that licenses the Justices to elaborate current notions of political morality in areas like equality, autonomy, and justice. Id. at 364, 374, 377-80, 382, 386, 391-95.
34. See, e.g., Lawrence v. Texas, 539 U.S. 558, 586-605 (2003) (Scalia, J., dissenting) (pointing out that Justice Kennedy and several colleagues, who had invoked stare decisis in Casey to justify retaining Roe's right to abortion, had overturned precedent in Lawrence to manufacture a constitutional right to practice sodomy). Again, I do not deny that stare decisis sometimes genuinely influences judicial decision making, especially where the landmark case has become firmly rooted and doctrinal stability seems critical. Rather, my point is that stare decisis does not restrain Justices who are determined to create a new constitutional rule, as the major Warren Court opinions illustrate.
35. See Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994).
36. See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997) (rejecting Congress's attempt to restore the Court's formerly generous approach to protecting the free exercise of religion).
37. A distinguished scholar has faulted law professors for adopting "The New York Times view" of constitutional law - i.e., "judg[ing] the Court pretty much exclusively by the degree to which its decisions do - or do not - advance causes [the Times] editorially favors." William W. Van Alstyne, Reflections on the Teaching of Constitutional Law, 49 ST. LOUIS U. L.J. 653, 655 n.6 (2005). [T]he Times predictably condemns the Court when . . . its decisions seem unprogressive, just as it applauds the Court when its decisions seem suitably progressive. . . . [The] Times appears to have little - if any - interest in measuring the extent to which the Court's decisions have any clear connection with the Constitution such as it is, as distinct from what the Times desires of its decisions whether or not they find warrant in the Constitution itself. Id. Professor Van Alstyne urges scholars to return to impartial assessment of the professional qualities of the Court's opinions. See id. at 654-55.
38. See Gonzales v. Carhart, 127 S. Ct. 1610, 1639-40 (Thomas, J., concurring). Although the national Republican platform has long called for overruling Roe, it should be noted that doing so would not necessarily achieve the social conservative goal of outlawing abortion. Rather, Justices like Scalia and Thomas have always argued that Roe should be overturned so that abortion issues can be resolved through the political process. See Webster v. Reprod. Health Serv., 492 U.S 490, 532 (1989) (Scalia, J., concurring in part and concurring in the judgment); see also infra notes 222, 421, 423 and accompanying text. The result would be different abortion laws in each state, some of them quite liberal.
39. See Gonzales, 127 S. Ct. at 1640-53 (Ginsburg, J., dissenting).
40. See id. at 1629-39.
41. See infra Part II.B.3.b.
42. 531 U.S. 98 (2000) (per curiam).
43. Id. at 103-11.
44. Id. at 104-11. Two Justices joined the equal protection holding but would have allowed the recount to continue under uniform standards. See id. at 134-35 (Souter, J., dissenting); id. at 144-47, 152, 158 (Breyer, J., dissenting). Justice Breyer, the only Democrat in the majority on the equal protection issue, followed his interpretation of the Constitution despite his political leanings. Regrettably, the same could not be said with certainty about any of the Court's other members.
45. See infra notes 309-13, 392-97 and accompanying debates.
46. The Constitution's text contains no right to abortion, its federalist structure commits such contentious social and moral issues to the states, the historical record confirms this view, and precedent did so as well until 1973.
47. Justice Scalia especially deserves an arched eyebrow. For instance, he abandoned his previous efforts to impose federalism-based limits on Congress's power under the Commerce Clause when that jurisprudence threatened the federal government's War on Drugs, a Republican mainstay. See Gonzales v. Raich, 125 S. Ct. 2195, 2215-20 (2005) (Scalia, J., concurring); see also Robert J. Pushaw, Jr., The Medical Marijuana Case: A Commerce Clause Counter-Revolution?, 9 LEWIS & CLARK L. REV. 879, 883-84, 898, 901-09 (2005) (discussing Justice Scalia's opinion endorsing Congress's authority to regulate the non-commercial, wholly in-state possession and use of marijuana). Similarly, Justice Scalia has embraced the conservative mythology that Article III compels modern doctrines like standing, ripeness, and mootness, and he has simply ignored voluminous textual and historical materials that undercut his assertions.
48. See Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393 (1996) [hereinafter Pushaw, Justiciability]. In the foregoing cases, Justice Scalia has insisted that his conclusions rest on the Constitution's original meaning. Such claims are categorically different from an acknowledgment that certain well-established precedents must be followed, regardless of whether they were correct initially.
49. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 138-39 (Amy Gutmann ed., 1997) (conceding that "originalism . . . must accommodate the doctrine of stare decisis").
50. For example, Justice Thomas adhered to his narrow prior interpretation of the Commerce Clause in rejecting Congress's power to regulate the non-commercial medical use of marijuana within a state, despite his policy preference against making an exception to federal drug laws. See Raich, 125 S. Ct. at 2229-39 (Thomas, J., dissenting). Similarly, contrary to his political support for the War on Terrorism, Justice Scalia concluded that the President could not indefinitely detain American citizens accused of being "enemy combatants," but rather must afford them a federal court trial with all attendant procedural rights. See Hamdi v. Rumsfeld, 542 U.S. 507, 554-79 (2004) (Scalia, J., dissenting); see also Robert J. Pushaw, Jr., The Enemy Combatant Cases in Historical Context: The Inevitability of Pragmatic Judicial Review, 82 NOTRE DAME L. REV. 1005, 1048-52 (2007) (explaining that Justice Scalia adopted the most "liberal" position on the Court on this issue).
51. See, e.g., Pushaw, Justiciability, supra note 38, at 397-472. I have followed the lead of Professor Amar, who has applied this approach to reach conclusions that span the political spectrum. See Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26 (2000) [hereinafter Amar, Foreword];
52. Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205 (1985). Conversely, I am skeptical of scholars who have deployed Neo-Federalism and other historically based approaches to reach results that are uniformly either liberal or conservative.
53. See Robert J. Pushaw, Methods of Interpreting the Commerce Clause: A Comparative Analysis, 55 ARK. L. REV. 1185, 1185-87, 1191-1202, 1206-11 (2003).
54. See Pushaw, Justiciability, supra note 38, at 397-99, 454, 402-72, 511-12.
55. See id. at 397-99.
56. See, e.g., id. at 472-512 (developing and applying Neo-Federalist rules to make the justiciability doctrines more clear and coherent); see generally Nelson & Pushaw, supra note 16 (providing a solid textual and historical basis to support much, but not all, of the Court's Commerce Clause jurisprudence).
57. Gonzales v. Carhart, 127 S. Ct. 1610, 1621-23 (2007) (citing statistics).
58. 381 U.S. 479 (1965).
59. Id. at 480-86. A Connecticut law, which banned all persons from distributing or using contraceptives or assisting others in doing so, had been enforced against a doctor and a Planned Parenthood director who had given contraceptives to a married woman. Id. at 480. Justice Douglas repeatedly declared that the right of privacy arose out of the "intimate relation between husband and wife," id. at 482, which he twice deemed "sacred," id. at 485, 486; see also id. at 480 (stressing application of the law against "married persons"); id. at 481 (referring to the rights of "married people" and a "husband and wife").
60. Id. at 484-85 (citation omitted). Justice Douglas's strained "penumbral" reasoning reflected his desire to avoid grounding the decision in the Fourteenth Amendment's Due Process Clause, which the Court had creatively interpreted as supplying substantive principles (such as "freedom of contract") to justify striking down progressive state regulatory laws in the late 1800s and early 1900s. See id. at 481-82 (denying that the Court was following discredited precedents like Lochner v. New York, 198 U.S. 45 (1905), by "sit[ting] as a super- legislature" to evaluate "the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions"). But see id. at 514-16, 522 (Black, J., dissenting) (arguing that the Court was reviving Lochner by asserting such a legislative power).
61. Id. at 486-99 (Goldberg, J., concurring, joined by Warren, C.J. and Brennan, J.).
62. Id. at 500 (Harlan, J., concurring) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)); see also id. at 502-07 (White, J., concurring) (agreeing with Justice Harlan's due process analysis and adding that the state had failed to show that banning married couples from using contraceptives furthered its declared goal of deterring illicit sex).
63. See id. at 507-27 (Black, J., dissenting); id. at 527-31 (Stewart, J., dissenting).
64. See id. at 510 n.1 (Black, J., dissenting).
65. See supra notes 18, 25 and accompanying text (providing other examples).
66. See Kenneth Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L. REV. 99, 124 (2007).
67. The Court had never before suggested that the Ninth Amendment - which was adopted to prevent the federal government (including its courts) from exceeding its enumerated powers and invading the rights of individuals and state governments - could be invoked for the opposite purpose of asserting virtually unchecked federal judicial power to veto state laws. See Griswold, 381 U.S. at 520 (Black, J., dissenting); id. at 529-30 (Stewart, J., dissenting).
68. Perhaps the best illustration of Griswold's untouchable status is the confirmation hearing of Samuel Alito, a staunch conservative who nonetheless pledged his commitment to Griswold. See Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 109th Cong. 318, 380 (2006) (testimony of Judge Samuel A. Alito).
69. Griswold, 381 U.S. at 485.
70. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
71. 410 U.S. 113 (1973).
72. Id. at 117-19.
73. Id. at 116.
74. See Gregory C. Sisk, The Willful Judging of Harry Blackmun, 70 MO. L. REV. 1049, 1053-60 (2005) (documenting that Justice Blackmun simply converted his longstanding personal opinion favoring a nearly absolute right to abortion into a constitutional right, showed little interest in its legal justification, obsessively de fended and sought to expand his fabricated right, and perceived his colleagues largely through the lens of his political stance on abortion).
75. Roe, 410 U.S. at 129-47.
76. See id. at 159-63.
77. Id. at 153 (emphasizing that forcing a woman to give birth to an "unwanted child" would cause physical discomfort, stress, and psychological harm).
78. Id. at 155-56, 165-66.
79. Id. at 156-58.
80. Id. at 159.
81. Id. at 150, 154-55, 159-63. Justice Blackmun recognized that, because of the presence of the fetus, privacy in the abortion context was different from that implicated in previous cases, which concerned only the rights of individual litigants. Id. at 159.
82. Id. at 162-64.
83. Id. at 150, 154, 163-64.
84. Id. at 163 (listing as examples requirements that doctors have appropriate licensing and training and that proper facilities be used).
85. Id. at 164-65.
86. 410 U.S. 179 (1973).
87. Id. at 182-83.
88. Compare id. at 208 (Burger, C.J., concurring) (declaring that the Court had carefully balanced various concerns and "reject[ed] any claim that the Constitution requires abortions on demand"), with id. at 209-21 (Douglas, J., concurring) (interpreting the Roe and Doe holdings as recognizing a right that deferred completely to a woman's wishes and her doctor's judgment, which could include considerations not merely of physical health but also of psychological, social, economic, and educational factors); see also Roe, 410 U.S. at 167-71 (Stewart, J., concurring) (continuing to deny that the Constitution confers a right of privacy, but concluding that the Court's "substantive due process" precedent had established a liberty interest in family matters that encompassed freedom of choice regarding abortion).
89. Roe, 410 U.S. at 172 (Rehnquist, J., dissenting).
90. Id. at 173.
91. Id.
92. Id. at 174.
93. Id. at 174-77.
94. Id. at 174 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
95. Doe, 410 U.S. at 221-22 (White, J., dissenting).
96. Id. at 222.
97. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 947 (1973).
98. Id. at 923-27, 943, 949.
99. See id. at 924-27 (making this argument and adding that, at the very least, history suggested drawing the line of the state's compelling interest at "quickening" rather than "viability"); Richard A. Epstein, Substantive Due Process By Any Other Name: The Abortion Cases, 1973 SUP. CT. REV. 159, 173-75 (noting that the law of crime, torts, and property had all treated a fetus as a person, even before quickening or viability); id. at 176-77 (observing that, if the fetus were indeed merely an unwanted body part, its removal would have no graver moral consequences than taking off a hangnail); see also id. at 167 (contending that Justice Blackmun's historical research did not "lend support for the ultimate decision to divide pregnancy into three parts, each subject to its own constitutional rules").
100. See Ely, supra note 84, at 926 (illustrating this point by noting that the government could prohibit the destruction of draft cards, which are obviously not "persons," despite the First Amendment protection of freedom of expression); see also Epstein, supra note 86, at 179-80.
101. See Ely, supra note 84, at 929-30; Epstein, supra note 86, at 168-72, 183.
102. See Ely, supra note 84, at 937; see also Epstein, supra note 86, at 168, 182-85. Rejecting this comparison to Lochner, Professor Tribe argued that the Due Process Clause allocates the decision making role in previability abortion and similar personal matters to individuals rather than the government, but he lamented Justice Blackmun's failure to clearly articulate and justify this substantive judgment. See Laurence H. Tribe, The Supreme Court, 1972 Term - Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1 (1973). Significantly, Professor Tribe acknowledged that states could properly conclude that allowing abortion after viability would be "tantamount to permitting murder," despite the possibility of "serious hardships for the woman . . . involved." See id. at 27-28; see also id. at 27 (distinguishing the right to abort a fetus before viability from the "entirely separate right to ensure its death after viability, which states can prohibit as infanticide"); id. at 4 n.24 (criticizing Roe for suggesting "a troublesome deference to the woman's desire to preserve her mental health by assuring that the unwanted [viable] fetus be killed").
103. See Epstein, supra note 86, at 184; see also id. at 180 (stressing that the Due Process Clause would still allow courts to balance these government interests against the woman's right to protect her life or health, in much the same way that self-defense justified certain homicides).
104. See John T. Noonan, Jr., The Root and Branch of Roe v. Wade, 63 NEB. L. REV. 668, 673 (1984); see also PHILLIP BOBBIT, CONSTITUTIONAL FATE 158-59 (1982) (faulting the Court for declining to explain why protection of the fetus was an insufficiently compelling interest or why viability should be the measurement of the state's interest);
105. Michael W. McConnell, How Not to Promote Serious Deliberation About Abortion, 58 U. CHI. L. REV. 1181, 1185 (1991) (arguing that Justice Blackmun claimed to avoid the question of when life begins, but actually answered that question by effectively giving the fetus no real protection).
106. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 382-S7 (1985) (criticizing the Court for focusing on patient-physician autonomy rather than women's equality). Ginsburg relied upon Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955 (1984), which maintained that constitutional gender-equality doctrine should focus on the biological reproductive differences between men and women, and that almost all limitations on abortion should be struck down because they oppress women and reinforce sex-role constraints on their freedom. See Ginsburg, supra, at 375 n.1;
107. see also Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281, 1286-89, 1295-1328 (1991) (arguing that the Constitution incorporates a "sex equality" principle that prohibits the government from depriving women of reproductive control, because forced motherhood perpetuates their legally imposed social and economic disadvantages);
108. Kenneth L. Karst, The Supreme Court, 1976 Term - Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 58 (1977) ("The focus of equal citizenship here is not . . . a right to an abortion, but a right to take responsibility for choosing one's own future."). A variation of this argument is that banning abortion effectively compels a woman to use her body (and risk her health) for the benefit of another, which would not be legally permitted in any other circumstance.
109. See Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47 (1971); see also Donald H. Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569 (1979) (asserting that the Constitution prohibits subordinating and physically burdening women by forcing them to be "Good Samaritans"). But see BOBBITT, supra note 91, at 163 (pointing out that this position treats the fetus as a stranger who has been inconveniently placed in the mother, and stressing that the law imposes a duty to care for one's child); id. at 159-67 (contending that Roe should have been rooted in the principle that the government may not coerce intimate acts). Even under an equal protection analysis, the Court would still have to determine whether the government's interest in protecting the fetus warrants prohibiting or restricting abortion. Moreover, the standard of judicial review for gender discrimination is not strict scrutiny but rather intermediate scrutiny, meaning that state regulations would be more likely to be upheld.
110. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 824 (3d ed. 2006).
111. See, e.g., Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992).
112. See Amar, Foreword, supra note 40, at 76.
113. The seminal piece is Philip B. Heymann & Douglas E. Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53 B.U. L. REV. 765 (1973), which defends Roe on the ground that a half-century of precedent had recognized a right of privacy in the areas of marriage, procreation, and family. See also LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 99 (1990) (supporting the abortion decisions on the basis that, over the past century, the Court has protected other unenumerated rights (for example, to marry, raise children, and use contraceptives), and that most Americans have accepted that constitutional "liberty" includes such elements of personal and family autonomy).
114. See, e.g., BOBBITT, supra note 91, at 157 ("[O]ne rarely encounters a law professor or judge willing to defend the decision. I think the universal disillusionment with Roe v. Wade can be traced to the unpersuasive opinion in that case."); Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 NOTRE DAME L. REV. 995, 1008 (2003) (remarking on the absence of "a serious scholarly defense of Roe's legal reasoning, on its own terms, by a distinguished legal academic (or even by an undistinguished one)").
115. See Sisk, supra note 61, at 1060 (Roe is "indefensible as a matter of any meaningful theory of constitutional interpretation beyond result-oriented preferences.").
116. See Ely, supra note 84, at 947.
117. See Roe v. Wade, 410 U.S. 113, 221-22 (1973) (White, J., dissenting); cf. Ginsburg, supra note 92, at 385-86 n.81 (citing Judge Henry Friendly's opinion, expressed three years before Roe, that abortion laws should be changed through state legislative processes rather than judicial invention of a "fundamental" right).
118. 381 U.S. 479 (1965).
119. See BOBBITT, supra note 91, at 158-59; see also id. at 164 (deeming the opinion "a pretext" to mask the ethical judgment that the government cannot force a woman to carry the fetus to term).
120. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67 (1976).
121. See, e.g., City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 444-45 (1983); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 760-64 (1986). The Court likewise invalidated statutory requirements regarding the distribution of information about adoption, paternal responsibility, and the availability of post-childbirth counseling. See id. at 760-63.
122. See Akron, 462 U.S. at 450-51 (holding that a 24-hour waiting period did not advance any legitimate state interest).
123. See Danforth, 428 U.S. at 67-71.
124. See H.L. v. Matheson, 450 U.S. 398, 409-13 (1981).
125. See Planned Parenthood v. Ashcroft, 462 U.S. 476, 492-94 (1983).
126. See, e.g., Bellotti v. Baird, 443 U.S. 622, 643 (1979); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 510-14 (1990); Hodgson v. Minnesota, 497 U.S. 417, 427, 450-55 (1990); Danforth, 428 U.S. at 72-75.
127. See, e.g., Danforth, 428 U.S. at 79-81.
128. Compare id. (upholding a Missouri law authorizing abortion recordkeeping, which could be viewed only by public health officials), with Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 472 U.S. 747, 766-68 (1986) (striking down a Pennsylvania statute requiring abortion records that the public could access).
129. Such a law was invalidated in Roe's companion case, Doe v. Bolton, 410 U.S. 179, 192-94 (1973); accord Ashcroft, 462 U.S. at 481-82; City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 434-39 (1983).
130. Compare Ashcroft, 462 U.S. at 482-86 (sustaining a state law that contained an implicit statutory exemption for emergencies), with Thornburgh, 476 U.S. at 762, 770-71 (striking down a Pennsylvania regulation that neither expressly nor impliedly provided for such an exception).
131. See Danforth, 428 U.S. at 75-79; see also Colautti v. Franklin, 439 U.S. 379, 397-401 (1979). The Court also invalidated laws that imposed liability on doctors for failing to meet certain standards of care in performing abortions, on the ground that such requirements might negatively affect maternal health. See Danforth, 428 U.S. at 81-84; Thornburgh, 476 U.S. at 768-69.
132. See, e.g., Colautti, 439 U.S. at 391-96.
133. 492 U.S. 490 (1989).
134. See id. at 513-21 (plurality opinion).
135. See id. at 519-20.
136. See id. at 518-19.
137. See id. at 532-37 (Scalia, J., concurring in part and concurring in the judgment).
138. Id. at 530 (O'Connor, J., concurring).
139. See id. at 525.
140. See Roe v. Wade, 410 U.S. 113, 150-64 (1973).
141. See Notes, 498 U.S. IV (1990) (describing Soger's nomination and confirmation); Notes, 502 U.S. IV (1991) (noting Thomas's appointment).
142. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (plurality opinion) (acknowledging the government's request to overturn Roe).
143. 505 U.S. 833 (1992).
144. Id. at 911-22 (Stevens, J., concurring in part and dissenting in part); id. at 922-43 (Blackmun, J., concurring in part and dissenting in part).
145. Id. at 844-901 (plurality opinion).
146. Id. at 851-53.
147. Id. at 851; see also id. at 850 (acknowledging that abortion offended many Americans' religious and moral views, but concluding that the Court's obligation was "to define the liberty of all, not to mandate our own moral code").
148. See id. at 852; see also id. at 869 (stressing "the urgent claims of the woman to retain the ultimate control over her destiny and her body").
149. As the plurality stated: We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have [agreed with the decision] . . . . [C]oming as it does after nearly 20 years of litigation in Roe's wake we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding. Id. at 871. The plurality repeatedly acknowledged that Roe may have committed a legal "error." See id. at 858-59, 869. Thus, they expressed "reservations" and "reluctance" at having to reaffirm it. See id. at 853, 861.
150. Id. at 854-64. The plurality contrasted Roe with cases like Plessy v. Ferguson, 163 U.S. 537 (1896), and Lochner v. New York, 198 U.S. 45 (1905), which the Court reasonably overruled in response to changing factual and legal understandings. Casey, 505 U.S. at 861-64 (plurality opinion); see also Casey, 505 U.S. at 912-14 (Stevens, J., concurring in part and dissenting in part) (agreeing with the plurality that stare decisis demanded reaffirming Roe's central holding).
151. See Casey, 505 U.S. at 864-69 (plurality opinion).
152. Id. at 867.
153. See id. at 844, 846-53, 857-61, 869, 871, 876.; see also id. at 852 ("[T]he liberty of the woman is at stake in a sense unique to the human condition and so unique to the law."). From the beginning, several Justices characterized abortion as an aspect of constitutional "liberty," not privacy. See Roe v. Wade, 410 U.S. 113, 167-71 (1973) (Stewart, J., concurring); id. at 172-73 (Rehnquist, J., dissenting). Others had echoed this idea of abortion as a matter of women's autonomy. See, e.g., Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 775 (1986) (Stevens, J., concurring).
154. See Casey, 505 U.S. at 869-76, 878 (plurality opinion). Roe itself had used the trimester system as a rough proxy for viability, with the assumption that fetuses became viable only in the last trimester, thereby justifying state restrictions or even bans on abortion during that stage. Roe, 410 U.S. at 159-64. Advances in neo-natal medical care, however, moved the date of viability into the second trimester, putting Roe on "a collision course with itself." See City of Akron v. Akron Center for Reprod. Health, 462 U.S. 416, 457-58 (1983) (O'Connor, J., dissenting). Thus, various Justices had previously criticized the trimester framework as unduly rigid, incompatible with scientific progress, and insufficiently sensitive to the states' interest in protecting potential life. See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490, 517-19 (1989); Akron, 462 U.S. at 455-57. Earlier cases had stressed that "viability is the critical point." E.g., Colautti v. Franklin, 439 U.S. 379, 389 (1979).
155. See Casey, 505 U.S. at 874-78 (plurality opinion).
156. See id. at 877.
157. See id. at 878; see also id. at 871-76 (noting that the Court after Roe had consistently undervalued this state interest).
158. See id. at 887-98 (stressing that, even if this requirement affected only a small percentage of women, it was precisely those women who were most in need of protection because they feared that disclosure would prompt abuse by their husbands).
159. Id. at 879-80.
160. Id. at 899-900; see also Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320 (2006) (reaffirming this rule, but emphasizing that such state laws must contain an exception for medical emergencies).
161. See Casey, 505 U.S. at 900-01. All of the Justices except Blackmun joined this part of the plurality's opinion. See id. at 936 n.7 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
162. Id. at 881, 885-87 (plurality opinion) (acknowledging that a waiting period might make some abortions more expensive or inconvenient, but concluding that it did not rise to the level of a "substantial obstacle"); see also id. at 966-70 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (arguing that this slight delay helped to ensure that women thoroughly considered their decisions). But see id. at 918-21 (Stevens, J., concurring in part and dissenting in part) (maintaining that this provision unconstitutionally interfered with a woman's choice).
163. Id. at 881-87 (plurality opinion); see also id. at 966-70 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (agreeing that Pennsylvania's "informed consent" requirement furthered its legitimate interests in protecting the woman's health and fetal life). But see id. at 916-18, 921-22 (Stevens, J., concurring in part and dissenting in part) (contending that states could require physicians to inform women of the medical risks of abortion, but not to provide materials intended solely to dissuade them from choosing abortion).
164. Id. at 930, 934 (Blackmun, J., concurring in part and dissenting in part).
165. Id. at 923.
166. See id. at 912, 916-22 (Stevens, J., concurring in part, concurring in the judgment in part, and dissenting in part).
167. See id. at 944-79 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); id. at 979-1002 (Scalia, J., concurring in the judgment in part and dissenting in part).
168. Id. at 979-80 (Scalia, J., concurring in the judgment in part and dissenting in part).
169. Id. at 951, 966-79 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part).
170. Id. at 952-53; id. at 979-81 (Scalia, J., concurring in the judgment in part and dissenting in part).
171. Id. at 995-96, 1002 (Scalia, J., concurring in the judgment in part and dissenting in part).
172. Id. at 951-52 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); see also id. at 982-84 (Scalia, J., concurring in the judgment in part and dissenting in part) (asserting that Roe had unreasonably adopted a purported balancing test that rested on the majority's personal value judgment that the fetus was "potentially," not actually, human).
173. Id. at 993-94 (Scalia, J., concurring in the judgment in part and dissenting in part); see also id. at 955-56 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part).
174. Id. at 954-66 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); see also id. at 957-63 (criticizing the plurality opinion for inexplicably invoking as supporting authority cases in which the Court had rejected stare decisis to overrule decisions that had misinterpreted the Constitution, such as Plessy and Lochner).
175. See id. at 958-64; id. at 996-99 (Scalia, J., concurring in the judgment in part and dissenting in part).
176. See id. at 963-64 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); id. at 996-1001 (Scalia, J., concurring in the judgment in part and dissenting in part) (making this point and adding that the Court, by imposing its personal preferences and value judgments instead of interpreting the Constitution's text and traditions, had caused the public to apply political pressure to the Justices).
177. Id. at 964 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); id. at 985, 987 (Scalia, J., concurring in the judgment in part and dissenting in part).
178. See id. at 945, 965-66 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); id. at 985-93 (Scalia, J., concurring in the judgment in part and dissenting in part).
179. See, e.g., David A. Strauss, Abortion, Toleration, and Moral Uncertainty, 1992 SUP. CT. REV. 1, 1-5, 20-28;
180. Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 27-34, 70-75, 100-03, 108-11 (1992).
181. See Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535, 1538 n.6, 1539 & n.9 (2000) (listing numerous articles in which he develops that thesis); id. at 1538-1602 (arguing that Congress, pursuant to the Necessary and Proper Clause, can direct the Court to ignore stare decisis in Roe or any other constitutional case because that doctrine is a matter of prudential judicial policy rather than a constitutional command).
182. See Amar, Foreword, supra note 40, at 87 (criticizing this view of stare decisis).
183. See, e.g., Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 IOWA L. REV. 735, 799-849 (2001).
184. See, e.g., Casey, 505 U.S. at 954-66 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part).
185. See id. at 993 (Scalia, J., concurring in the judgment in part and dissenting in part).
186. See THE FEDERALIST NO. 78 (Alexander Hamilton).
187. See Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447, 475-79 (1994) (describing this traditional Blackstonean conception of common law).
188. See Gallup's Pulse of Democracy: Abortion, http://www.gallup.com/ poll/1576/Abortion.aspx (documenting that most Americans do not favor overruling Roe v. Wade, but do support limitations such as laws requiring informed consent, parental consent, and bans on second- and third-trimester abortions).
189. See CHEMERINSKY, supra note 92, at 546, 675-76, 791-98.
190. See id. at 546, 676, 794.
191. Subsequent cases have illustrated this problem. See, e.g., Mazurek v. Armstrong, 520 U.S. 968 (1997) (concluding that a Montana statute requiring that abortions be performed exclusively by licensed physicians did not "unduly burden" a woman's right to choose, and rejecting the dissent's argument that the law's purpose was to limit access to abortion by targeting the lone physician assistant in the state who provided abortions). It should be noted that the common law often relies on vague standards that are fleshed out on a case-by-case basis, such as the "reasonable person" test for negligence and contract interpretation. In making such determinations in a typical torts or contracts case, however, judges are unlikely to be influenced by the strong emotional feelings that accompany judgments about abortion.
192. See Notes, 512 U.S. IV (1994) (detailing the Breyer appointment); Notes, 509 U.S. IV (1993) (noting the Ginsburg nomination and confirmation).
193. See Stenberg v. Carhart, 530 U.S. 914, 927-28 (2000) (outlining this procedure, which is known as intact "dilation and extraction" (D & X) when the fetus presents feet first); id. at 987-89 (Thomas, J., dissenting) (setting forth Dr. Haskell's description of this abortion method); id. at 958-60 (Kennedy, J., dissenting) (noting that intact D & E raises special moral concerns because it mimics a live birth, subjects the fetus to measurable suffering, and is sometimes performed on viable fetuses).
194. See Gonzales v. Carhart, 127 S. Ct. 1610, 1621 (2007).
195. See id. at 1620-21; Stenberg, 530 U.S. at 924-26.
196. See Diane M. Gianelli, Shock-Tactic Ads Target Late-Term Abortion Procedure, AM. MED. NEWS, July 5, 1993, at 15-16.
197. See Gonzales, 127 S. Ct. at 1623 (noting that these two procedures account for only .07 percent of second-trimester abortions).
198. See id. (describing how a doctor medicates a woman to cause fetal demise and then induces contractions to deliver the fetus).
199. See id. at 1623 (citing Stenberg, 530 U.S. at 989, 995-96 & nn.12-13 (Thomas, J., dissenting) (setting forth these state laws)); H.R. REP. NO. 108-58, at 4-5 (2003) (discussing the quick and widespread enactment of this state legislation).
200. 530 U.S. 914 (2000).
201. Id. at 921-22 (citing NEB. REV. STAT. ANN. § 28-328(1) (1999); NEB. REV. STAT. ANN. § 28-326(9) (1999)).
202. Stenberg, 530 U.S. at 921-22; see also id. at 946 (Stevens, J., concurring) (noting that Roe's basic holding had been endorsed by 13 of the 17 Justices who had considered the issue).
203. Id. at 929-38.
204. Id. at 933-36. The state relied upon this evidence to argue that no health exception was necessary because there remained available safe alternatives to the banned procedure. Id. at 931-36.
205. Id. at 932-38. Justice Breyer dismissed Nebraska's argument that the ban would have little effect (because intact D & Es were only rarely performed) on the ground that the legal issue was "whether protecting women's health requires an exception for those infrequent occasions." Id. at 934.
206. Id. at 937 (quotation marks omitted).
207. Id. at 930, 938-46.
208. Id. at 938-40.
209. Id. at 945. The Court's conclusion that this narrow reading was implausible enabled it to dispense with its rules governing the interpretation of ambiguous or vague statutes - for example, construing statutes to avoid constitutional doubts, deferring to state authorities' interpretations of their own laws, and certifying novel state law questions to the state's supreme court. See id.
210. Id. at 945-46.
211. See id. at 946-47 (Stevens, J., concurring). But see id. at 962-63 (Kennedy, J., dissenting) (lamenting this failure to recognize states' power to declare a moral difference between ordinary D & Es and partial-birth abortions, which mimic childbirth and hence resemble infanticide).
212. Id. at 952 (Ginsburg, J., concurring); but see id. at 1008 n.19 (Thomas, J., dissenting) (pointing out that Justice Ginsburg provided no evidence to support her speculation that Nebraska legislators had acted with an unconstitutional purpose and that they had in fact preserved the basic abortion right recognized in Roe and Casey).
213. Id. at 947-51 (O'Connor, J., concurring).
214. See id. at 972-79 (Kennedy, J., dissenting) (contending that the Court had ignored its duty to defer to state authorities' reasonable interpretation of their own statutes - here, that the Nebraska law applied only to intact D & E abortions - and to construe statutes to avoid constitutional difficulties). Two other dissenters echoed these arguments. See id. at 954 (Scalia, J., dissenting); id. at 989-1006 (Thomas, J., dissenting).
215. Id. at 957, 965-68, 979 (Kennedy, J., dissenting). He noted that the record did not reveal any situations in which intact D & E was the only appropriate option and that, even if some experts disagreed about whether such a situation might ever arise, legislatures should be given broad latitude in resolving conflicting evidence. Id. at 970; see also id. at 989-1006, 1020 (Thomas, J., dissenting).
216. Id. at 979 (Kennedy, J., dissenting).
217. Id. at 964-70 (Kennedy, J., dissenting); see also id. at 1005-12 (Thomas, J., dissenting) (arguing that Casey, which required a health exception only for dangers presented by continuing a pregnancy, had been distorted into a right to obtain a particular abortion procedure that an individual doctor prefers and believes is comparatively safer, despite the state's contrary judgment and its prohibition of that technique as trivializing human life). Justice Scalia declared that "the Court must know (as most state legislatures banning this procedure have concluded) that demanding a 'health exception' - which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?) - is to give live-birth abortion free rein." Id. at 953 (Scalia, J., dissenting).
218. See id. at 952 (Rehnquist, C.J., dissenting) (noting that he continued to disagree with Casey, but that Justices Kennedy and Thomas had correctly applied its principles).
219. Id. at 982-1020 (Thomas, J., dissenting).
220. Id. at 980.
221. Id. at 982.
222. Id. at 955 (Scalia, J., dissenting).
223. Id. at 956. "The notion that the Constitution of the United States, designed, among other things, 'to . . . secure the Blessings of Liberty to ourselves and our Posterity/ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd." Id. at 953.
224. Id. at 956.
225. See, e.g., B. Jessie Hill, The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 TEX. L. REV. 277, 288-94 (2007) (praising the Court for recognizing a woman's constitutional right to choose the safest method of abortion for her, and citing numerous scholars who shared this view).
226. Amar, Foreword, supra note 40, at 109.
227. Id. at 110 (footnote omitted).
228. Id. at 110-11.
229. Id. at 111.
230. Id. at 111-12.
231. Id. at 112.
232. Id. at 112-13.
233. See supra notes 9, 82, 89, 91, 172, 202-05 and accompanying text. Cf. David D. Meyer, Lochner Redeemed: Family Privacy After Troxel and Carhart, 48 UCLA L. REV. 1125, 1129, 1169-73, 1178-89 (2001) (emphasizing the Court's failure to acknowledge, much less explain, the value judgments that drove its decision in Stenberg).
234. See supra notes 188-94 and accompanying text.
235. See supra notes 195-205 and accompanying text.
236. See Stenberg v. Carhart, 530 U.S. 914, 958-59 (2000) (Kennedy, J., dissenting).
237. Id. at 946-47 (Stevens, J., concurring). Cf. John M. Breen & Michael A. Scaperlanda, Never Get Out'a the Boat: Stenberg v. Carhart and the Future of American Law, 39 CONN. L. REV. 297 (2006) (lambasting the Court for allowing infanticide by prohibiting states from protecting children in the process of being born).
238. See Stenberg, 530 U.S. at 964-70 (Kennedy, J., dissenting).
239. See supra notes 197-98 and accompanying text (summarizing the dissenting opinions in Stenberg that stressed this problem).
240. See Meyer, supra note 214, at 1128 ("What is most remarkable about Carhart is that the Court struck down Nebraska's ban on so-called 'partial-birth abortions' on grounds so robust and uncompromising."); id. at 1162 (observing that the Court made "a woman's interest in health an absolute trump of a state's interests"); see also GALLUP, supra note 169 (demonstrating that only 40% of Americans find abortion morally acceptable, that 60% do not support legal abortion even in the first trimester if a mother merely does not want to have the child (e.g., for financial reasons), that the majority of Americans favor banning abortion in the second and third trimesters, and that only 22% believe that partial-birth abortion should be legal).
241. To effectuate the social conservative agenda, then, Roe would not have to be merely overruled but replaced with a new constitutional doctrine recognizing the personhood of the fetus. See Dawn E. Johnsen, Functional Departmentalism and Non-judicial Interpretation: Who Determines Constitutional Meaning?, 67 LAW & CONTEMP. PROBS., Summer 2004, at 105, 141, 146 (reprinting John Ashcroft's statement that he opposed all abortions because, among other things, the Fourteenth Amendment's protection of the "life" of a "person" includes the fetus);
242. see also Lino A. Graglia, Constitutional Law: A Ruse for Government by an Intellectual Elite, 14 GA. ST. L. REV. 767, 777 (1998) (pointing out that a conservative triumph equivalent to the victory obtained by liberals in Roe would be a decision not simply overturning Roe, but also holding that states cannot permit abortion). None of the conservative Justices has ever suggested such a course, thereby illustrating the fallacy of the familiar charge that they wish to impose their ideological views under the guise of constitutional interpretation. Rather, Justices like Scalia and Thomas have always maintained that abortion should be left to the democratic process, knowing that many states would enact liberal laws. Thus, although reversing Roe is a pillar of right-wing politics, doing so would not by itself achieve conservative goals. The problem for self-styled "originalists" like Justices Scalia and Thomas is not that they are wrong about abortion, but that they often ignore the Constitution's historical meaning in other areas when it conflicts with their political or ideological goals. Perhaps the best example is their embrace of the historically dubious notion, cherished in Republican circles, that Article III uniquely limits the judiciary vis-à-vis the federal and state political branches, which has spawned doctrines such as justiciability and abstention.
243. See, e.g., Robert J. Pushaw, Jr., Bridging the Enforcement Gap in Constitutional Law: A Critique of the Supreme Court's Theory that Self-Restraint Promotes Federalism, 46 WM. & MARY L. REV. 1289 (2005).
244. See Stenberg, 530 U.S. at 956-79 (Kennedy, J., dissenting); see also supra notes 169, 221 (citing polls consistently showing strong majority approval of this approach).
245. See supra notes 180, 197, 218 and accompanying text.
246. See Robert J. Pushaw, Jr., Does Congress Have the Constitutional Power to Prohibit Partial-Birth Abortion?, 42 HARV. J. ON LEGIS. 319, 335 (2005) (setting forth the legislative history of the PBABA, which captures the passions engendered by partial-birth abortion despite its relative rarity).
247. See supra note 117 and accompanying text. Geoffrey Stone has claimed that Justice Kennedy's decision for four fellow Catholic Justices in Gonzales, like his Stenberg dissent, implemented their religiously based moral opposition to abortion. See David Reinhard, How Many Supreme Court Justices Are Catholic?: The Partial Birth Abortion Ban and Prejudice, OREGONIAN, May 3, 2007, at B6 (quoting Professor Stone). If this charge were true, however, Justice Kennedy's vote in Casey would have been different - as would Justice Brennan's votes in earlier abortion decisions.
248. See H.R. REP. No. 108-58, at 12-14 (2003) (discussing these bills); see also Gonzales v. Carhart, 127 S. Ct. 1610, 1623 (2007).
249. See Gonzales, 127 S. Ct. at 1623-24.
250. 18 U.S.C. § 1531(b)(1) (2003).
251. Id. § 1531(a) (2003). A physician accused of violating the PBABA has the right to a hearing to determine whether he performed a partial-birth abortion as necessary to save the mother's life. See id. § 1531(d)(1).
252. See Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, § 2(1), 117 Stat. 1201.
253. Id. § 2(8).
254. See Pushaw, supra note 225, at 324 (setting forth the legislative history). The final statute retained this absolute prohibition. See 18 U.S.C. § 1531(a) (2003).
255. See Pushaw, supra note 225, at 324-25 n.39.
256. See id. at 319 (quoting U.S. CONST. art. I, § 8, cl. 3).
257. See id. at 319-26 (citing legislative history).
258. See Gonzales v. Carhart, 127 S. Ct. 1610, 1619-20 (2007) (describing this district court litigation).
259. 127 S. Ct. 1610 (2007).
260. Id. at 1626-39.
261. Id. at 1631.
262. Id. at 1629-30.
263. Id. at 1630-31. Accordingly, the Act applied only to doctors who, at the outset, intended to perform an intact D & E - not to those who decided to use that procedure during the operation, and not to those who performed any other type of second-trimester abortion (ordinary D & E, induction, hysterectomy, or hysterotomy). Id. at 1631-32. The PBABA clearly defined the proscribed conduct - knowingly delivering a living fetus to an identified anatomical landmark and then intentionally killing it - and thus was not void for vagueness, as the plaintiff doctors claimed. Id. at 1627-29.
264. Id. at 1632-38; see also id. at 1627 (acknowledging that the PBABA prohibited all intact D & Es, whether performed before or after viability).
265. See id. at 1626-27, 1633.
266. See id. at 1633.
267. See id. at 1633-35.
268. Id. at 1634.
269. Id. at 1635-38.
270. See id. Justice Kennedy noted that Congress had unquestioned power, exercised here under the Commerce Clause, to regulate the medical profession. Id. at 1638. The Court did acknowledge that (1) it had an independent duty to review legislative factfinding when constitutional rights were at stake, and (2) some of Congress's findings were either incorrect or had been superseded (e.g., that no medical schools taught the intact D & E procedure). See id. at 1637-38. Despite these problems, Congress had sufficient evidence to support its ban. Id.
271. Id. at 1637-38.
272. Id. at 1638-39.
273. Id.
274. Id. at 1639 (Thomas, J., concurring).
275. Id.
276. Id. at 1640.
277. Id. at 1640-53 (Ginsburg, J., dissenting).
278. Id. at 1641.
279. Id.
280. Id. at 1641-42 (citing language in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879 (1992) (plurality opinion), Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-69 (1986), and Planned Parenthood v. Danforth, 428 U.S. 52, 79 (1976)).
281. Id. at 1642 (quoting Stenberg, 530 U.S. at 938). The dissenters highlighted Sfenberg's clarifications that "substantial medical authority" did not mean "unanimity," that the prohibited procedure need be merely less risky rather than "absolutely] necess[ary]," and that a division of medical opinion signaled uncertainty, which in turn dictated reliance on a physician's "appropriate medical judgment" about the best treatment in each case in light of comparative risks and benefits. Id. at 1642-43. Justice Ginsburg claimed that second-trimester abortions were more likely to be sought by poor or adolescent females or by women who had experienced serious health-related problems or discovered fetal abnormalities. Id. at 1642 n.3.
282. Id. at 1644-46. Specifically, the evidence indicated that, compared to regular D & E, intact D & E was often safer because it (1) reduced the risk of trauma to the cervix and uterus, (2) decreased the likelihood that any fetal tissue would remain and cause health complications, (3) avoided sharp bone fragments, and (4) took less operating time. Id. at 1645.
283. Id. at 1644-46. Justice Ginsburg's argument here is disingenuous. Many doctors refuse to perform late-term abortions on ethical and moral grounds, and thus would never have the experience that Justice Ginsburg deems necessary to formulate an informed opinion.
284. Id. at 1646-47.
285. Id. at 1647.
286. Id. According to the dissent, the Court embraced "discredited" notions about women by invoking the unsubstantiated "shibboleth" that they become depressed over their abortion decision as a pretext to deprive women of their right to choose an abortion procedure that might be necessary for their safety. Id. at 1647-48; see also id. at 1648 n.7 (citing studies refuting the notion that women typically regret their abortion and suffer depression because of this choice). Justice Ginsburg further contended that, if Congress were truly concerned that doctors would withhold information about the intact D & E procedure, the solution would be to require physicians to provide such information rather than to ban it outright. Id. at 1648-49. This argument is logically unanswerable.
287. Id. at 1649-50.
288. Id. at 1647; see also id. at 1650 (highlighting the Court's moral condemnation implicit in referring to obstetricians and gynecologists as "abortion doctors," deem-ing their reasoned medical judgments "preferences," and calling a fetus a "baby" and an "unborn child").
289. Id. at 1650 (citing Stenberg, 530 U.S. at 930). Justice Ginsburg contested the majority's ruling that the facial attack failed because the claimants could not show that the PBABA would be unconstitutional as applied to all or "a large fraction" of cases. Id. at 1651. Rather, the "undue burden" should be measured by that minority of women who require an intact D & E because other procedures might endanger their health: "The very purpose of a health exception is to protect women in exceptional cases." Id.
290. Id. at 1651-52 (noting that it was pointless to wait for an as-applied challenge because the record contained many descriptions of discrete instances where intact D & E would better protect maternal health).
291. Id. at 1652-53.
292. Id. at 1653.
293. See, e.g., Caroline Burnett, Comment, Dismantling Roe Brick by Brick - The Unconstitutional Purpose Behind the Federal Partial-Birth Abortion Act of 2003, 42 U.S.F. L. REV. 227, 229-36, 249-63 (2007) (arguing that the Court mistakenly allowed Congress to pursue its goal of destroying Roe's guarantee of reproductive freedom);
294. Ronald Dworkin, The Court and Abortion: Worse Than You Think, N.Y. REV. BOOKS 20-21 (May 31, 2007) (portraying Gonzales as a "worrying," "dangerous," and "alarming" opinion that threatens the basic right to abortion); Graham Gee, Regulating Abortion in the United States After Gonzales v. Carhart, 70 MOD. L. REV. 979, 979 (2007) (describing this case as "a significant retreat" from Roe and Casey, and as "portentous . . . with respect to the future direction of abortion");
295. Judith G. Waxman, Privacy and Reproductive Rights: Where We've Been and Where We're Going, 68 MONT. L. REV. 299, 316 (2007) (deeming Gonzales an "ominous" decision that threatens a woman's constitutional right to choose under Roe);
296. Erwin Chemerinsky, Editorial, Partial Birth Decision Shows Court Will Overrule Precedent, CHI. SUN-TIMES, Apr. 23, 2007, at 43 (stating that the Court "abandoned" Roe's holding that a woman and her doctor should select the appropriate medical procedure, and that this "dramatic" and "radical[]" shift was "troubling").
297. See, e.g., Steven Reinberg, Supreme Court Abortion Ban Ruling Draws Mixed Reaction, WASH. POST, Apr. 19, 2007, at B1 (quoting James Tonkowich, President of the Institute on Religion and Democracy, who characterized Gonzales as a "landmark ruling" that could lead to Roe's demise).
298. See, e.g., Hill, supra note 206, at 319 ("Although the case has been met with consternation by pro-choice advocates and has been viewed as a shocking reversal of the Supreme Court's longstanding doctrine with respect to abortion rights, what is perhaps most surprising . . . is the judicial modesty with which the Supreme Court ultimately acted in turning away the constitutional challenge."); David J. Garrow, Op-Ed., Don't Assume the Worst, N.Y. TIMES, Apr. 21, 2007, at A15 (cautioning that Gonzales is "an extremely limited upholding of the federal ban" affecting very few abortion providers and patients, and that the Court stressed the narrow scope of the prohibition). Professor Nussbaum conceded that Gonzales's "actual holding is narrow," but warned that its "implications for the future of sex equality are ominous."
299. Martha C. Nussbaum, The Supreme Court, 2006 Term - Foreword: Constitutional Capabilities: "Perception" Against Lofty Formalism, 121 HARV. L. REV. 4, 84 (2007); see also Karst, supra note 53, at 130-31 (to similar effect).
300. For development of this theme, see CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999).
301. Gonzales v. Carhart, 127 S. Ct. 1610, 1619, 1626, 1629, 1632, 1638-39 (2007).
302. Id. at 1638-39.
303. Id. at 1627, 1629, 1631, 1635-39.
304. Id. at 1642 (Ginsburg, J., dissenting) (quoting Stenberg v. Carhart, 530 U.S. 914, 938 (2000)).
305. Id. at 1629-32 (majority opinion).
306. See id. at 1641-43 (Ginsburg, J., dissenting).
307. Id. at 1635-38 (majority opinion).
308. See id. at 1644-46 (Ginsburg, J., dissenting).
309. Id. at 1629-32 (majority opinion).
310. See id. at 1642-46 (Ginsburg, J., dissenting).
311. Id. at 1635-38 (majority opinion).
312. See id. at 1651 (Ginsburg, J., dissenting).
313. See, e.g., Robert Barnes, Roberts Court Moves Right, But With a Measured Step, WASH. POST, Apr. 20, 2007, at A3 (reporting Professor A.E. Dick Howard's observation that the Court is willing to reconsider precedent and move rightward, but only gradually).
314. Most constitutional law scholars concluded that Gonzales effectively overturned Stenberg. See, e.g., Erwin Chemerinsky, Turning Sharply to the Right, 10 GREEN BAG 2d 423, 425-27, 437 (2007);
315. Charles Fried, Op-Ed., Supreme Confusion, N.Y. TIMES, Apr. 26, 2007, at A25;
316. Linda Greenhouse, Precedents Begin to Fall for Roberts Court, N.Y. TIMES, June 21, 2007, at A21 (quoting Ronald Dworkin).
317. See Stenberg v. Carhart, 530 U.S. 914, 956-79 (2000) (Kennedy, J., dissenting).
318. See supra notes 197-98, 204-05, 245-50 and accompanying text (discussing the dissenting opinions in Stenberg, and Justice Kennedy's opinion in Gonzales, highlighting this concern).
319. See supra notes 180, 197, 218, 224 and accompanying text.
320. Gonzales v. Carhart, 127 S. Ct. 1610, 1640-43, 1649, 1653 (2007) (Ginsburg, J., dissenting).
321. See, e.g., Jack M. Balkin, How New Genetic Technologies Will Transform Roe v. Wade, 56 EMORY L.J. 843, 844-45, 849-60, 863-64 (2007); Nussbaum, supra note 274, at 83-87; Reva Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 EMORY L.J. 815, 815-38 (2007);
322. Cass R. Sunstein, Ginsburg's Dissent May Yet Prevail, L.A. TIMES, Apr. 20, 2007, at 31. Several scholars anticipated Justice Ginsburg's argument. See Law, supra note 92, at 955-63, 981, 986-87, 1003-28; MacKinnon, supra note 92, at 1286-89, 1300-13, 1317-28. To be clear, Americans generally believe in women's equality and freedom. My point is that they do not agree with Justice Ginsburg and her academic defenders that partial-birth abortion is necessary to secure equal rights and liberty.
323. For a thoughtful and balanced treatment of the moral issues involved, see Alan E. Brownstein & Paul Dau, The Constitutional Morality of Abortion, 33 B.C. L. REV. 689 (1992) (contending that a woman's privacy and autonomy interests in having an abortion decrease as her pregnancy progresses and become especially weak in the final trimester).
324. For a summary and analysis of such anti-discrimination laws, see KATHARINE T. BARTLETT & DEBORAH L. RHODE, GENDER AND LAW: THEORY, DOCTRINE, AND COMMENTARY 43-136, 154-313, 406-43, 453-65 (4th ed. 2006).
325. Most scholars view restrictions or bans on abortion as part of an entrenched legal and social framework designed to deprive women of educational and economic opportunities. See, e.g., MacKinnon, supra note 92, at 1300-01, 1308-13, 1317-23. Thus, they would reject any claim that treats the availability of abortion as distinct from other economic and social issues. This argument does not, however, account for the success of millions of women who have never had an abortion.
326. See Posting of Douglas W. Kmiec to Talking Justice, http://communities.justicetalking.org/blogs/ (Apr. 23, 2007, 19:59 EDT); see also MacKinnon, supra note 92, at 1323-24 (contending that opponents of abortion should work to change the social and economic conditions that make it necessary); Law, supra note 92, at 956 (maintaining that the achievement of true sex-based equality would require transformation of the family, child-rearing arrangements, and the labor market).
327. Indeed, in 1983, then-Judge Ginsburg acknowledged that Roe had unwisely short-circuited the state legislative trend toward relaxing abortion restrictions. See Ginsburg, supra note 92, at 379-80, 385-86.
328. See Gallup's Pulse of Democracy: Abortion, http://galluppoll.com/ content/abortion ("Abortion is often thought of as a women's issue, but polling data suggest, on the contrary, that the depth of one's religious beliefs, not gender, is what drives attitudes on abortion."); see also supra notes 180, 197, 203-05, 209, 218, 221, 223-24, 228, 293 and accompanying text.
329. See Gonzales v. Carhart, 127 S. Ct. 1610,1647 (2007) (Ginsburg, J., dissenting) (quoting Stenberg v. Carhart, 530 U.S. 914, 946-47 (2000) (Stevens, J., concurring)).
330. Professor MacKinnon, to her credit, has addressed this issue forthrightly. See MacKinnon, supra note 92, at 1309-16. She recognizes that "the fetus is a human form of life," but concludes that "sex inequality in society requires that completed live birth mark the personhood line." Id. at 1316. I do not understand the logic of a constitutional principle that acknowledges a woman's right to abort a fully formed, viable fetus minutes before birth, but not minutes afterward. Neither do the overwhelming majority of Americans, including women, who seek to protect this "human form of life."
331. See Pub. L. No. 107-207, 116 Stat. 926, 1 U.S.C. § 8 (2002).
332. Interestingly, then-Judge Ginsburg criticized Roe as provoking, rather than resolving, the conflict over abortion. Ginsburg, supra note 92, at 385-86. It is unclear why she now believes that a similarly broad Supreme Court edict on partial-birth abortion will definitively end the controversy over that procedure.
333. See H.R. REP. NO. 108-58, at 23-26 (2003).
334. Gonzales, 127 S. Ct. at 1638.
335. Id. at 1640 (Thomas, J., concurring).
336. The rule that the Court will refuse to entertain legal issues not presented to or considered by the courts below (except for subject matter jurisdiction) originated in Montana Railway Co. v. Warren, 137 U.S. 348, 350-52 (1890). The limitation of review to questions presented in the certiorari petition was first mentioned in Irvine v. California, 347 U.S. 128, 129-30 (1954), and then promptly codified in SUP. CT. R. 14.1(a).
337. See, e.g., United States v. Lopez, 514 U.S. 549, 552-53, 566-67 (1995) (citing numerous sources dating back to Hamilton and Madison). Of course, since 1937 the Court has not been terribly vigilant about enforcing these federalism-based restrictions. For instance, Congress's power to tax and spend for the general welfare is virtually unbounded. See, e.g., Sabri v. United States, 541 U.S. 600 (2004).
338. This rule traces to Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11 (1799). It was recently reaffirmed in Wachovia Bank v. Schmidt, 546 U.S. 303 (2006).
339. This requirement has long been justified on the ground that federal courts have limited jurisdiction, which must always be demonstrated in a particular case before a court can reach the merits. See Mansfield v. Swan, 111 U.S. 379, 382-86 (1884).
340. See Pushaw, Justiciability, supra note 38, at 395-99, 454-512.
341. This point should require little elaboration, as it is the classic justification for making federal judges independent and giving them the power of judicial review. See THE FEDERALIST No. 78 (Alexander Hamilton); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-80 (1803).
342. This principle received its fullest explanation in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341-48 (1936) (Brandeis, J., concurring), although the Court has invoked this rule since its earliest ways. See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 441 (1821) (declaring that, if the Court could decide the case on statutory grounds, it would be "unnecessary, and consequently improper" to reach the constitutional issue).
343. A recent example is Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2775 (2006), which held that Congress had not authorized the President to create military commissions in order to avoid reaching the question of whether such commissions violated the Due Process Clause. See infra notes 358-61 and accompanying text (discussing Hamdan).
344. I anticipate two criticisms of my idea that the Court should determine not only its own jurisdiction but also that of Congress and the President. First, one might contend that each branch has a constitutional duty to assess its own jurisdiction before acting and that the Court should defer to such judgments by the political departments to avoid conflict. Litigants cannot, however, agree to allow Congress or the President to assert power they do not possess, and the pressure on elected officials to implement their constituents' policy desires makes it exceedingly difficult for them to impartially evaluate constitutional limits on their power. Second, one might object that application of my approach to Article II power would raise especially vexing problems. Indeed, even where parties have challenged the executive branch as exceeding its jurisdiction (e.g., by requesting a prerogative writ), this determination has proved to be quite tricky and hard to separate from the merits. See Pushaw, supra note 164, at 747-48, 756, 802-03, 817, 827-28, 843, 864-66. Such difficulties, however, suggest the wisdom of a deferential standard of judicial review, not the need to abandon this inquiry altogether.
345. See supra notes 235-36 and accompanying text.
346. 514 U.S. 549 (1995).
347. Id. at 551, 556-68.
348. Id. at 556-68.
349. 529 U.S. 598 (2000).
350. Id. at 600-19.
351. 545 U.S. 1 (2005).
352. Id. at 5-33.
353. See Pushaw, supra note 225, at 320-22, 327-38, 352.
354. See, e.g., Allan Ides, The Partial-Birth Abortion Act of 2003 and the Commerce Clause, 20 CONST. COMMENT. 441, 445-51, 461-62 (2004);
355. David P. Kopel & Glenn H. Reynolds, Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 CONN. L. REV. 59, 59-64, 68-70, 99, 104-06 (1997); Brannon P. Denning, Gonzales v. Carhart: An Alternate Opinion, 2007 CATO S. CT. REV. 167, 175-77.
356. See Pushaw, supra note 225, at 333 (noting that Congress can regulate any interstate commercial activity, even if it is also influenced by moral factors, as evidenced by statutes banning interstate prostitution and loan sharking).
357. Id. at 334.
358. See, e.g., Ides, supra note 326, at 459-62; Kopel & Reynolds, supra note 326, at 105.
359. See, e.g., Hodel v. Indiana, 452 U.S. 314, 321-29 (1981) (sustaining a federal law that involved only 21,800 acres of farmland, a microscopic percentage of America's agricultural land).
360. See supra notes 318-20 and accompanying text.
361. See, e.g., Ides, supra note 326, at 453-54, 462; Kopel & Reynolds, supra note 326, at 72, 105; Denning, supra note 326, at 182.
362. See Pushaw, supra note 225, at 336-37.
363. 17 U.S. (4 Wheat.) 316, 352-53 (1819).
364. Id. at 405-23.
365. See supra notes 12-14 and accompanying text.
366. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 34-40 (1937).
367. See Baker v. Carr, 369 U.S. 186, 228 (1962); Reynolds v. Sims, 377 U.S. 533, 568 (1964).
368. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (creating a right to be free from coercive police questioning); Mapp v. Ohio, 367 U.S. 643 (1961) (holding that evidence must be excluded if it was seized without a warrant issued on probable cause).
369. This moderate approach reflects some combination of respect for stare decisis, pragmatic policy judgments, preservation of collegiality, and perhaps a desire to be treated respectfully by the legal and media elite. See supra notes 20-22 and accompanying text.
370. See Lawrence v. Texas, 539 U.S. 558, 562-79 (2003).
371. Id. at 579-85 (O'Connor, J., concurring).
372. 478 U.S. 186 (1986). Lawrence overruled Bowers directly. See Lawrence, 539 U.S. at 578.
373. Lawrence, 539 U.S. at 586-605 (Scalia, J., dissenting).
374. Id. at 605-06 (Thomas, J., dissenting).
375. The "substantial effects" test was invented in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 34-40 (1937). The Court later held that a regulated activity would be viewed in the aggregate to determine its effect on interstate commerce. See Wickard v. Filburn, 317 U.S. 111 (1942). The Warren Court relaxed standards further by upholding Commerce Clause legislation whenever Congress could have had a "rational basis" for concluding that an activity affected interstate commerce, even if Congress had not expressly considered the issue. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 255-58 (1964).
376. See Nelson & Pushaw, supra note 16, at 1-119.
377. The Court's earlier opinions clearly stated that the inquiry should focus not on whether the activity itself was "commercial," but rather on whether it exerted a "substantial effect" on interstate commerce. See, e.g., Jones & Laughlin, 310 U.S. at 37, 40; Wickard, 317 U.S. at 120-25; Heart of Atlanta, 379 U.S. at 258. Moreover, the Court rejected the notion that the Tenth Amendment or "federalism" imposed any independent limitations on Congress. See Wickard, 317 U.S. at 125; see also United States v. Darby, 312 U.S. 100, 123-24 (1941) (dismissing the Tenth Amendment as a mere "truism"). The Rehnquist Court did not formally overrule these cases, yet it resurrected the notion they had repudiated: that Congress could regulate only "commercial" conduct and could not interfere with subjects traditionally committed to the states. See United States v. Lopez, 514 U.S. 549, 558-59 (1995).
378. See Robert J. Pushaw, Jr., The Medical Marijuana Case: A Commerce Clause Counter-Revolution?, 9 LEWIS & CLARK L. REV. 879 (2005).
379. See Pushaw, supra note 225, at 331-32.
380. See Scarborough v. United States, 431 U.S. 563, 569-78 (1977).
381. See Lopez, 514 U.S. at 558-68.
382. 545 U.S. 1 (2005).
383. See id. at 33-42 (Scalia, J., concurring).
384. See, e.g., Randy Barnett, The Ninth Circuit's Revenge, NAT'L REV. ONLINE, June 9, 2005, http://www. nationalreview.com/comment/barnett200506090741.asp.
385. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality opinion); Rasul v. Bush, 542 U.S. 466 (2004); Rumsfeld v. Padilla, 542 U.S. 426 (2004).
386. Hamdi, 542 U.S. at 538.
387. 126 S. Ct. 2749 (2006).
388. See id. at 2772-98.
389. See Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified as amended in scattered sections of 10 U.S.C).
390. See, e.g., Hamdi, 542 U.S. at 579-99 (Thomas, J., dissenting); Rasul, 542 U.S. at 488-506 (Scalia, J., dissenting, joined by Rehnquist, C.J., and Thomas, J.); Hamdan, 126 S. Ct. at 2810-23 (Scalia, J., dissenting, joined by Thomas and Alito, JJ.). See generally Pushaw, supra note 39, at 1058-78 (arguing that the Court in war powers cases has long rejected black-letter rules in favor of a flexible approach that reflects political and practical considerations, such as the gravity of the military crisis, the egregiousness of the legal violation, and the political strength of the President).
391. 127 S. Ct. 2618 (2007).
392. Id. at 2619-23.
393. Id. at 2626-38 (Alito, J., concurring).
394. Id. at 2623-26 (Thomas, J., concurring).
395. Id. at 2638-43 (Breyer, J., concurring in part and dissenting in part).
396. Id. at 2643-51 (Stevens, J., dissenting).
397. See Transcript of Oral Argument at 21, 36-38, Morse v. Frederick, 127 S. Ct. 2618 (2007) (No. 06-278) (reprinting Justice Breyer's statements of concern for interfering with a principal's ability to run an orderly school); Malcolm Gladwell, Judge Breyer's Life Fashioned Like His Courthouse, WASH. POST, June 26,1994, at A1 (noting the impact on Justice Breyer of his father's career as an educational lawyer).
398. 347 U.S. 483 (1954).
399. See Grutter v. Bollinger, 539 U.S. 306, 311-44 (2003) (upholding the law school program); id. at 344-46 (Ginsburg, J., concurring); Gratz v. Bollinger, 539 U.S. 244, 282-91 (2003) (Stevens, J., dissenting) (rejecting the majority's invalidation of the undergraduate plan); id. at 291-98 (Souter, J., dissenting); id. at 298-305 (Ginsburg, J., dissenting).
400. See Gratz, 539 U.S. at 268-75 (Rehnquist, C.J., opinion for the Court); Grutter, 539 U.S. at 346-49 (Scalia, J., dissenting); id. at 349-78 (Thomas, J., dissenting); id. at 378-87 (Rehnquist, C.J., dissenting); id. at 387-96 (Kennedy, J., dissenting).
401. In the undergraduate case, Justice Breyer concurred only in the Court's judgment, not its opinion. See Gratz, 539 U.S. at 281 (Breyer, J., concurring). He agreed with Justice O'Connor that Michigan's effort to diversify its undergraduate college ran afoul of the Equal Protection Clause by failing to give each applicant individualized consideration. Id. at 281. Nonetheless, he joined the first part of Justice Ginsburg's dissenting opinion, which recognized that governments could constitutionally distinguish policies that attempted to include more underrepresented minorities from those that aimed to exclude such persons. Id. at 282.
402. See Grutter, 539 U.S. at 325-33; Grafz, 539 U.S. at 276-80 (O'Connor, J., concurring).
403. See Grutter, 539 U.S. at 333-44.
404. See Gratz, 539 U.S. at 276-80 (O'Connor, J., concurring).
405. See Grutter, 539 U.S. at 379-88 (Rehnquist, C.J., dissenting).
406. See Gratz, 539 U.S. at 304-05 (Ginsburg, J., dissenting).
407. See id. at 248-51 (listing amici curiae).
408. Parents Involved in Comm. Schools v. Seattle Sch. Dist. No. 1,127 S. Ct. 2738 (2007).
409. Id. at 2746-68.
410. Id. at 2768-88 (Thomas, J., concurring).
411. Id. at 2788-97 (Kennedy, J., concurring in part and concurring in the judgment).
412. Id. at 2800-42 (Breyer, J., dissenting).
413. Id. at 2797-800 (Stevens, J., dissenting).
414. See supra notes 14, 26-27 and accompanying text.
415. See, e.g., Thomas C. Grey, Modern American Legal Thought, 106 YALE L.J. 493, 500-02 (1996). Most significantly for present purposes, one of the founders of Legal Realism observed that the Court, despite its rhetoric, had long ignored the Constitution's text and departed from its own precedents whenever doing so furthered its ideological goals.
416. K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 39-40 (1934).
417. See, e.g., Mark Tushnet, The Dilemmas of Liberal Constitutionalism, 42 OHIO ST. L.J. 411, 416, 424-25 (1981).
418. See, e.g., LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998).
419. See, e.g., Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777 (2001).
420. See Pushaw, supra note 225, at 339; see also Sullivan, supra note 161, at 36-81.
421. See, e.g., SUNSTEIN, supra note 275; Strauss, supra note 11.
422. 531 U.S. 98 (2000) (per curiam).
423. Id. at 101-11.
424. Id. at 110-11.
425. Id. at 124-27 (Stevens, J., dissenting).
426. This bloc of five Justices had recently reaffirmed federalism-based limits on Congress's Commerce Clause power in United States v. Morrison, 529 U.S. 598 (2000). They had also held that the Tenth Amendment and general principles of federalism prohibited Congress from "commandeering" state legislatures and executives to enact and enforce federal law. See New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 98 (1997). Finally, they had strengthened the notion of state sovereign immunity. See, e.g., Seminole Tribe v. Florida, 517 U.S. 44 (1996).
427. See Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. COLO. L. REV. 749, 753-54 (1994).
428. See Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964).
429. See Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966).
430. See Pushaw, supra note 18, at 386-88 (citing numerous examples). The one Justice who undoubtedly acted neutrally was Stephen Breyer, a Democrat who nonetheless joined the majority's equal protection holding - although he criticized them for reaching out to decide this political question in the first place and for halting the recount. See Bush, 531 U.S. at 145-58 (Breyer, J., dissenting). Obviously, he concluded that this ruling comported with post-Baker precedent despite his political views.
431. See, e.g., Robert H. Bork, Sanctimony Serving Politics: The Florida Fiasco, 19 NEW CRITERION 4, 5-11 (2001).
432. See Frank Newport, President-Elect Bush Faces Politically Divided Nation, but Relatively Few Americans Are Angry or Bitter Over Election Outcome, GALLUP, Dec. 18, 2000, http://www.gallup.com/poll/2200/ PresidentElect-Bush-Faces-Politically-Divided-Nation-Relatively.aspx; Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. REV. 847, 926 (2005) (noting the increased politicization apparent in cases like Bush v. Gore, but stressing that most Americans still view the Court favorably).
433. See Ronald J. Krotoszynski, Jr., An Epitaphios for Neutral Principles in Constitutional Law: Bush v. Gore and the Emerging Jurisprudence of Oprah!, 90 GEO. L.J. 2087 (2002) (characterizing Bush v. Gore as a logical outgrowth of a decades-long trend in which the Court made constitutional decisions based upon policy results rather than consistent adherence to precedent).
434. See Marshall, supra note 17, at 525-31.
435. See Pushaw, Justiciability, supra note 38, at 397-98, 411, 413, 427, 433-34, 469; Robert J. Pushaw, Jr., Judicial Review and the Political Question Doctrine: Reviving the Federalist "Rebuttable Presumption" Analysis, 80 N.C. L. REV. 1165, 1185-201 (2002); see also SCALIA, supra note 38, at 38-47 (contending that the Justices' continual revision of the Constitution, based upon their views of changing morality and social needs, is inconsistent with the purpose of a written Constitution and the democratic processes it established).
436. See supra note 28 (citing William Van Alstyne).
437. See Callins v. Collins, 510 U.S. 1141, 1143-59 (1994) (Blackmun, J., dissenting from denial of petition for writ of certiorari) (announcing that, although he had always personally opposed the death penalty as immoral, he had changed his previous view that it was nonetheless constitutional); see also Sisk, supra note 61, at 1067-68 (noting that Justice Blackmun simply elevated his personal opinion to constitutional status).
438. See, e.g., Jonathan L. Entin, Judicial Selection and Political Culture, 30 CAP. U. L. REV. 523, 540-44 (2002).
439. See Richard W. Stevenson & Neil A. Lewis, Alito, at Hearing, Pledges an Open Mind on Abortion, N.Y. TIMES, Jan. 11, 2006, at A1.
440. See RICHARD DAVIS, ELECTING JUSTICE: FIXING THE SUPREME COURT NOMINATION PROCESS 4-5, 75-76, 101-02, 127, 134-35, 166 (2005).
441. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 19 (1959).
442. See id. at 6, 10-20.
443. See id. at 8-9, 22-34.
444. See Pushaw, supra note 225, at 342-43.
445. I do not deny that it is also possible for Justices to apply constitutional common law standards to reach results at odds with their personal, political, or ideological views. One illustration is Justice Kennedy's vote to affirm Roe, although some skeptics have speculated that he did so to be taken seriously by the legal intelligentsia. See supra note 22 and accompanying text. Another is the decision by Justice Breyer, a liberal Democrat, to join the majority in Bush v. Gore in holding that the Court's equal protection precedent required invalidating Florida's standardless system for recounting votes. See supra note 35 and accompanying text. Nonetheless, I contend that such examples are rare, and that in any event Justices should not adhere to precedent that has no basis in the Constitution's text, structure, and history.
446. See Griswold v. Connecticut, 381 U.S. 479, 507-27 (1965) (Black, J., dissenting); id. at 527-31 (Stewart, J., dissenting); Lawrence v. Texas, 539 U.S. 558, 605-06 (2003) (Thomas, J., dissenting).
447. See Gonzales v. Raich, 541 U.S. 1, 45-57 (2005) (O'Connor, J., dissenting).
448. See supra notes 40-43 and accompanying text (summarizing this mode of analysis).
449. See supra notes 80, 82, 85, 98, 201-03 and accompanying text.
450. See supra notes 82-83, 85, 99, 152, 205 and accompanying text.
451. See supra notes 29, 222; infra note 422 and accompanying text.
452. See supra notes 183-91 and accompanying text.
453. See Pushaw, supra note 225, at 348-53.