Longtime readers will know that the issues discussed by Liptak here are some of my longest-standing hobbyhorses. I won’t repeat my arguments in full, but a few comments with links for those interested in more:
- The argument that Roe created a counterproductive backlash is, I think, wrong in almost every detail. Roe has always been popular; there’s no evidence that winning in the courts has different consequences than winning in other political institutions; and the argument that abortion rights would be as well or better protected if not for Roe is implausible in the extreme.
- The specific, oft-cited argument made by Ginsburg is, I think, wrong in two crucial respects. First of all, Ginsburg’s argument that the decision would have been more broadly accepted had it rested on equal protection grounds is almost certainly wrong. The public evaluates decisions based on results, not reasoning, and essentially nobody without a professional obligation to do so reads Supreme Court opinions. Second, I don’t understand the argument that a “minimalist” opinion just striking down the Texas law wouldn’t have generated a backlash. The Texas law, while extreme in terms of its language and implications, wasn’t “extreme” in the sense of being an outlier; more than 30 states substantively identical abortion statutes that also would have been struck down. And following that, of course, would have been additional rounds of litigation to determine whether arbitrary panels of doctors and other “reform” laws were constitutional. That’s not a formula for lesser conflict.
- In terms of application to the same-sex marriage cases, then, liberals shouldn’t be hoping to win by losing or whatever. There’s no reason to believe that a broad opinion invalidating same-sex marriage would produce any more backlash than legislative repeals would. There would be more “backlash” only if you (plausibly) assume that absent Supreme Court decisions many states would maintain their bans on same-sex marriage for a long time. In other words, you can avoid backlash by just not winning, an argument I consider self-refuting.
…Irin Carmon has more on the Ginsburg argument.