Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government

Abstract

This article evaluates a common criticism of Roe v. Wade, that the decision unnecessarily perpetuated counterproductive, divisive backlash by seeking to short circuit the political process and mandate an abortion code generally unacceptable to the nation. Left-leaning academics, advocates, and judges have made this criticism — including Ruth Bader Ginsburg, Cass Sunstein, Jeff Rosen, Mike Klarman, Gerald Rosenberg, and Bill Eskridge. In earlier writings, I too criticized Roe on these grounds and, correspondingly, celebrated Pennsylvania v. Casey for recalibrating abortion rights in ways that matched popular opinion and elected government preferences.

By contrasting state practices around the time of Roe (when there was comparatively little polarization) to state practices today (when there is extreme polarization), I will argue both that an indeterminate Casey-like standard would have been better suited to the less polarized 1973 period and that a rule-like Roe standard would be better suited to today’s world of highly polarized red and blue states. I will also consider the transitional 1992-2009 period, explaining why the Casey compromise — which had largely stabilized abortion politics during this period — was nonetheless doomed to fail in the face of continuing polarization.

Keywords: constitution, abortion, polarization, courts, judicial minimalism