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Rehnquist and Roe

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Hopefully you’ve been reading Balkanization, which has added commentary from two of the best constitutional scholars currently writing–Mark Graber and Mark Tushnet–to already excellent blog. (I wish they would come on permanently, creating a lefty version of Volokh.) Anyway, Prof. Balkin has been poring over the recently-released Blackmun papers, and has two posts–both fascinating–up about Roe’snear-death experience during the first Bush Administration. Please read the posts–the excerpt from the Stevens memo alone makes it worth your time. A few quick comments:

1)Granting that I haven’t seen the evidence he has, based on what Balkin tells us and on the accounts of Edward Lazurus, I actually disagree with Prof. Balkin’s ultimate thesis about Rehnquists’s strategizing inWebster:

In the end, neither Scalia nor O’Connor joined his opinion treating Roe as a rational basis case. Rehnquist discovered that he had been too clever for his own good.

It seems to me that Casey was the most the conservatives could have gotten. By then, it seems clear that O’Connor was not going to go along with a decision that overturned Roe, whether directly or sub silento. Casey upheld four of the five types of abortion restriction anyway, and there’s no way O’Connor would have gone along with overriding the spousal notification provision (no matter what standard was being used.) By leaving the issue unsettled in Webster, Rehnquist bought a little more time; it just didn’t work, because Kennedy and Souter rolled. Scalia’s earlier attack on O’Connor may have been, but frankly I doubt that it made any difference. I just don’t see O’Connor voting to overturn Roe, and I particularly doubt that she would have provided the fifth vote under any circumstances. I don’t think Rehnquist could have done anything to change that.

2)As an aside, claims that upholding the types of state restrictions upheld in Casey have the effect of “gutting” Roe are, I think, exaggerated. Mandatory waiting periods, informed consent forms, and the like have very little impact on abortion rates. (As current guest blogger Mark Graber points out, low-income women have to overcome so many obstacles to obscure abortions anyway that the additional restrictions don’t amount to much.) I don’t mean to say that they’re trivial; such restrictions are costly and humiliating for women, and particularly low-income women, even if they don’t actually deter many abortions. But what really matters is whether states can actually ban abortions. As long as that part of the holding in Roe is upheld, it’s a huge victory on balance for the pro-choice side.

3)One sometimes hear liberals proclaim fear of a “Scalia court.” Actually given that he’ll be on the court anyway, making him the Chief Justice (although appalling symbolically) would actually be the best place for him. Although for exactly the opposite reasons as Burger (mmm, Burger), he would be a very ineffective Chief. As Tushnet notes if you scroll up a bit, Rehnquist has been an extremely effective Chief Justice. Scalia probably would not, which if you don’t like Scalia’s jurisprudence is (of course) a good thing.

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