Most of this lament for the polarization of the Roberts Court I addressed in a TAP article recently. The short version is that 1)Roberts will certainly fail in his attempt to create a consensual Court that papers over major substantive divisions, and 2)since I don’t think the Court is entitled to a fixed degree of legitimacy and think that legal and political politics should be open and explicit this doesn’t concern me.
However, Wittes does get at one thing I’ve never understood: how people who criticized Kennedy’s opinion in Carhart II but supported the outcome actually wanted the case to be disposed of. I can certainly understand why the anti-Roe pro-choice crowd didn’t like Kennedy letting the gender subordination and hack pseudo-science cats out of the anti-choice bag — they’d like to war against judicially protected reproductive freedom with the anti-choice movement they wish they had, not the one that actually exists — but without these reactionary assumptions about women’s rational incapacities the legislation (which the state conceded at oral argument would not protect fetal life) has no rational connection to any state interest at all. Wittes explains how he wanted the Court to rule:
Not one of the nine justices was willing to apply to the federal partial-birth abortion statute the logic the court had unanimously articulated the year before for a New Hampshire parental notification statute–in which it had refused to throw out the statute on its face but had ordered the lower courts to block applications of it that would run afoul of its case law.
The problem here is that Ayotte doesn’t actually make any sense. While it’s certainly a sound principle to construe ambiguous legislation to assume its constitutionality, to read a health exemption into a legislative enactment when the legislature specifically considered and rejected one makes no sense at all (and to describe it as “judicial restraint” is Orwellian.) The appropriate remedy is for the Court to send the issue back to the legislatures and invite them to craft legislation consistent with the Court’s precedents (or to overturn the precedent), not to distort the legislation beyond recognition. And Ayotte makes even less sense in this case. While a health exemption, at least in theory, leaves a substantial number of cases in which parental notification would be necessary, to permit doctors to perform D&X abortions when they plausibly believe them to protect maternal health would defeat the purpose of the statute entirely (why would doctors choose a method they believe to be less safe?)
And this is my central problem with this consensus-above-all-other-virtues jurisprudence. The courts owe the public transparency and some measure of internal logic. If they’re overturning precedents (pace Roberts) they should say so, and if they’re effectively nullifying legislation they should do so openly.