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The Backlash Begins!

[ 13 ] May 29, 2008 |

An outraged California populace has reacted to the Outrageous Judicial Activism of their unaccountable unelected state court. As you remember, the court, with only the support of other unrepresentative and undemocratic institutions such as the state legislature and governor but in the teeth of strong opposition from pundits who support social change in theory and always oppose it in practice struck down a ban on same-sex marriage. The response: California is showing if anything more support for same-sex marriage than ever. I have no idea if the initiative will pass, but I certainly don’t see much evidence of the predicted political firestorm here.

This reminds me about Jeffrey Rosen’s latest claims about the backlash that will be created by the court’s decision (via Matt Zeitlin.) My research into the subject has convinced me that claims about unique backlashes created by judicial interventions into social disputes are not supported by the relevant evidence. Admittedly, however, some claims are not easy to test empirically and are not obviously incorrect in theory, so any conclusion has to be tentative. The specific claim advanced by Rosen here, however, is just transparently wrong:

But legal reasoning isn’t irrelevant, as the backlash against Roe v. Wade shows: Because Roe was so poorly reasoned, pro-life activists found it easier to rally undecided voters under the guise of attacking judicial usurpation. On that score, the California decision represents a huge opportunity for gay marriage opponents who are already trying to persuade undecided voters to overturn the decision by popular initiative.

The problem here is obvious. In general terms, the majority of the public knows virtually nothing about appellate courts, let alone the fine points of substantive due process or equal protection analysis. And, moreover, of the small group of specialists who have read and understand Roe, a substantial number believe the outcome of the case to be plausible or correct, even if they find Blackmun’s opinion deficient. After all, anyone knowledgeable enough to analyze Roe is also likely to understand that Supreme Court opinions, written by justices and clerks of varying quality and often constructed to keep divergent coalitions together, do not always give the best defense of plausible outcomes. (Brown v. Board, after all, is now our most celebrated decision although few would call it a masterpiece of legal craftsmanship or confuse Earl Warren with a deep legal mind.) Rosen’s argument is therefore implausible on its face; the evidence is unequivocal that the public evaluates Supreme Court opinions, to the extent it does so at all, on outcomes and not reasoning.

And the specific claims about Roe are no more tenable. If anti-choice activists have used Roe to shift public opinion against abortion rights, this fails to actually show up in public opinion data. Moreover, Roe is at least as popular as the underlying right it protects, while Rosen’s assertions require Roe being much less popular. And finally, I think to restate the assertion that anti-aboriton activists would have had no objection to Roe had the opinion been better crafted is to refute it. Seriously, does anybody think that had, say, the Supreme Court followed Ginsburg’s retrospective advice and grounded abortion rights in gender equality that any significant number of Roe’s opponents would have been mollified? Similarly, approximately 0% of the “Yes” vote in the upcoming referendum will be based on a strong opposition to the court’s suspect classification analysis. (It also seems to me that the majority opinion is at least as plausible and well-crafted as the boilerplate, question-begging paeans to judicial restraint in the dissents; if Rosen disagrees he doesn’t explain why.)

Finally I also note that Rosen does not substantiate his claim that Goodridge hurt Kerry in 2004 — which is not nearly as self-evident as some people think — and ignores the fact that overturning Goodridge could not get the support of even 25% of the legislature less than 5 years later. I very, very strongly doubt that the Caluifornia court damaged the Democrats in California any more than they did in Massachusetts, where supporters of same-sex marriage have fared much better than opponents and support for same-sex marriage has increased.

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  1. Oliver Grant says:

    And, moreover, of the small group of specialists who have read and understand Roe, a substantial number believe the outcome of the case to be plausible or correct, even if they find Blackun’s opinion deficient.
    This is wrong. Roe is considered on par with Dred Scott and Lochner, and Jeffrey Rosen, by the way, is one of those specialists.

  2. Incontinentia Buttocks says:

    Nice use of the passive voice, O.G.
    Certainly the anti-choice movement loves to consider Roe on par with Dred Scott, but serious legal scholars (even Rosen, perhaps) would disagree.
    Rosen’s quite implausible view of Roe is that the case was actually bad for abortion rights (which he claims to support) because if people saw the hardship that women would go through in a state that banned abortion, the public would overwhelmingly demand abortion rights around the country, thus securing them in ways that Roe presumably hasn’t. However much he disagrees with the reasoning of the case, his core argument is consequentialist….and it’s absolutely nuts. The women who would be most seriously impacted by state bans on abortion would be the poorest and most marginal, hardly a group the public ever notices, let alone rallies around. And despite the existence of a strong anti-choice movement, Roe has remained the law of the land.
    In the world of legal thought, the self-importantly “moderate” Rosen is very often a useful idiot for the far right. I’m sure TNR is very proud of him; it’s a perfect match of journal and pundit. He and Will Saletan should both be voted off the island.

  3. DrDick says:

    The notion that even 1% of the electorate actually ever reads judicial opinions, as opposed to reading or more likely hearing about the decision in the news media, is ludicrous on its face. As to understanding the legal reasoning and underlying legal logic, not to mention precedent and all the rest, is really over the top. I have a Ph. D. and struggle with that when I have to read and understand legal cases for my research.

  4. Matt Weiner says:

    to restate the assertion that anti-aboriton activists would have had no objection to Roe had the opinion been better crafted is to refute it.
    To be fair, it doesn’t look like that’s Rosen’s argument here — he’s saying that Roe’s craftmanship made it easier for the activists to influence the swingy middle. That doesn’t seem a priori false.
    Of course it is actually false, for all the reasons you give, and Rosen is full of shit in multiple ways — I especially like how he said that the immutability of sexual orientation is contested science because… a lawyer for Advocates for Faith and Freedom said so. Smooth. Unless Zeitlin had a birthday since I last checked, Rosen just got schooled by a high-school student.

  5. Matt–admittedly, he made the argument more explicitly in his Lawrence article, but I still think that’s the implication of his argument.

  6. The women who would be most seriously impacted by state bans on abortion would be the poorest and most marginal, hardly a group the public ever notices, let alone rallies around.
    Right–that was the situation in 1973 in most states, and yet liberalization was dead. I thought that was the beauty of the analogous Canadian decision: it called the pro-lifer’s bluff, basically saying that any abortion regulation had to be non-arbitrarily constructed and enforced. Which means, of course, no abortion regulation. But without judicial intervention, there won’t be outrage because the laws won’t obstruct the ability of affluent women to get abortions.

  7. paperwight says:

    This is wrong. Roe is considered on par with Dred Scott and Lochner, and Jeffrey Rosen, by the way, is one of those specialists.
    Technically true, as long as by “considered on par with”, one actually means “compared with for purposes of propaganda by the forced breeding outrage pimps”.
    As far as Jeffrey Rosen, he’s an apologist for Gitmo and either dumb enough or liar enough to say Roberts might move SCOTUS to the left. Why are we taking him seriously again?

  8. Jay B. says:

    Then, when the legalization of gay marriage in CA is upheld by voter referendum, Rosen will make up some other shit and no one will ever get a chance to ask him why he believed something so fucking simple just a few months before.
    There have been examples of backlashes against judicial interventions, in particular when minority rights are asserted (civil rights, busing) — but then like civil rights and unlike the slightly different issue of busing, literally no one is being adversely affected in any meaningful way by the application of judicial intervention.

  9. dj moonbat says:

    Rosen’s argument is therefore implausible on its face; the evidence is unequivocal that the public evaluates Supreme Court opinions, to the extent it does so at all, on outcomes and not reasoning.
    Ah, finally I get to agree with Scott in full on a point of abortion jurisprudence!
    People like Brown because it made America better, not because it was brilliant (tho I don’t know if it’s our MOST celebrated). Same with Roe.
    And when people decry Bush v. Gore twenty years from now, the criticism will focus WAY more on the way the decision immanentized the eschaton than its “reasoning.”

  10. John F says:

    Rosen’s argument is therefore implausible on its face; the evidence is unequivocal that the public evaluates Supreme Court opinions, to the extent it does so at all, on outcomes and not reasoning.

    I agree, hell most lawyers do that too…:-)
    As a lawyer, how do you know when an opinion is terrible? (and I don’t by outcome)- when the opinion is relevant/material (or worse seemingly “controlling”) to an issue you are dealing with- but nonetheless simply cannot be reconciled/harmonized with statutes and other cases (those not superseded by the crappy decision)

    Accordingly, how can you tell that the author of a decision knows it is crap? When they write into the decision that it “only applies to the narrow facts” before it, that it is not to be used or cited in other cases, etc etc., that’s because the author knows the decision is simply bad law, and if it’s relied upon as authority they will be forced to retract it and admit it was badly decided-
    this happens at appellate courts all over not infrequently… and happened in a SCOTUS decision not so long ago…

  11. [...] that Roe would have been more accepted had it been decided on equal-protection grounds is extremely implausible. The public evaluates Supreme Court decisions on results, not reasoning. Roe has generally been [...]

  12. [...] that Roe would have been more accepted had it been decided on equal-protection grounds is extremely implausible. The public evaluates Supreme Court decisions on results, not reasoning. Roe has generally been [...]

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