Jeffrey Rosen: Center-right Crit at TNR

I have a post at TAPPED about Jeffrey Rosen’s touting of John Roberts’s would-be “centrist” justification for upholding “partial-birth” abortion legislation that should clearly struck down based on the current law. A couple more points that I couldn’t fit in to a post that was already too long.

The article contains, first of all, a classic example of TNR pox-on-both-housesism:

Breyer is not the only justice who runs the risk of betraying his principles. If Justice Clarence Thomas decides to uphold the partial-birth abortion ban, abandoning his usual skepticism of federal regulations, he, too, would look opportunistic. By the same token, conservative defenders of the ban, such as former Attorney General Edwin Meese, are urging the Court to construe Congress’s power to regulate interstate commerce very broadly, even though they take the opposite position in cases involving civil rights and environmental regulations; liberal groups are similarly hypocritical.

Needless to say, Rosen declines to name any of the “liberal groups” urging that the Supreme Court strike the law on Commerce Clause grounds. Perhaps there are some examples, although I’m not aware of any, but such arguments certainly didn’t play more than a trivial role in litigation seeking to overturn the statute. Or maybe he’s referring to Breyer’s unwillingness to defer to congressional fact-finding, but while Breyer can certainly be hacktacular I hardly think it’s inconsistent to refuse to defer to Congressional assertions that 2+2=74. Moreover, I’m not sure how Rosen can attack Breyer on this count. The Rosen/Roberts position–that rather than accept congressional findings of fact and the policy choices Congress deliberately made, the Supreme Court should just go ahead and read a very narrow health exemption into the statute based on its own reading of the data–is considerably more unprincipled and incoherent. If the findings of “fact” adduced by Congress cannot justify the legislation, then Breyer’s remedy–to strike the statute and let Congress craft an appropriate health exemption if it so chooses–is the obviously correct one.

The other odd thing about this article is its strange brew of moth-eaten 50s-era vulgar pluralism and crude normative legal realism. As many of you know, The New Republic has generally been (literally) a citadel of the Frankurter-Bickel variant of “legal process” theory, and Rosen used to invoke this school constantly. To put it crudely, legal process had two crucial components. The first part is its claim that what makes courts distinctive is that they have to identify legal principles, apply them in subsequent cases, and give a plausible account of what they’re doing. Rosen seems to have entirely abandoned this prong of the theory (unless he can invoke it to oppose Roe itself.) Indeed, what’s most remarkable about Rosen is the extent to which he’s stopped worrying and learned to love the jurisprudence of Sandra Day O’Connor. His argument in this article–in which he urges the court to adopt his preferred policy outcome without even the pretense that it represents a plausible reading of the Constitution or the Court’s precedents–is the kind of preening, transparently unprincipled difference-splitting that gives “minimalism” a bad name.

The part of legal process theory that he does remained attached to is the idea that the courts can manage (if not end) social conflicts and produce stability by deciding difficult issues the right way and saying the right things about them. (Who knew that Rosen’s only objection to Casey‘s justly-mocked call for “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution” was that the Court didn’t allow quite enough poor women to be denied abortions and women be burdened with health risks for no reason to hit the sweet spot.) As Digby so brilliantly pointed out today, the idea that anti-choicers will be satisfied with a few bones thrown in their direction is sheer fantasy. The court’s decision in this case will not affect the extent to which the abortion issue is controversial–the only thing at stake is the reproductive freedom of the most vulnerable women in society. To sacrifice the latter in the hope that a pony farm will grown on ice cream castles in the air is as silly as Felix Frankfurter thinking he could convince Southerners to accept desegreagtion if he were permitted to craft judicial opinions in just the right way.