an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One way of understanding Roe’s place in contemporary constitutional law is by comparing it with an equally famous case, Brown v. Board of Education. Today every judicial nominee is presumed to support Brown, although nominees may differ on issues like busing or affirmative action. If asked, no judicial nominee would hesitate to state that he or she supports the decision in Brown v. Board of Education; indeed, failure to make ritual obeisance to Brown would pose a serious obstacle to any nominee’s chances at confirmation. Trent Lott had to resign as Senate Majority Leader because his comments about Strom Thurmond merely hinted that racial segregation wasn’t all that bad. By contrast, federal judicial nominees are usually coached to avoid answering questions about Roe v. Wade and abortion rights on the grounds that such issues may come before them as judges. Yet the fact that issues of race relations law may also come up before them is apparently irrelevant to their ability to endorse Brown.
The subsequent course of American politics partly explains these differences. The result in Brown was effectively ratified by Congress ten years later in the Civil Rights Act of 1964, due to the success of the Civil Rights Movement. (We also should not forget the imperatives of national foreign policy. Competing with the Soviet Union in the eyes of the Third World, Jim Crow was an embarrassment to the United States, and many foreign policy elites were only too happy to see it abolished.) Indeed, the Civil Rights Act of 1964 went even further than Brown in several respects. It prohibited both public and private discrimination, and it made enforcement of school desegregation efforts practical for the first time by threatening to withhold federal funding from schools that remained segregated.
Compliance with the Act’s ban on private discrimination in employment and public accommodations was far smoother than anyone had a right to expect, and the threat of loss of federal funding coaxed reluctant school boards in the South to begin a process of school desegregation that, in time, made parts of the South, not the North, the most desegregated areas in the country. Moreover, because members of both parties were crucial to passage of the 1964 Civil Rights Act, both parties had a stake in the legitimacy of Brown. The Civil Rights Act of 1964, in the words of Archibald Cox, made “Brown more fully law,” and led to the eventual canonization of Brown v. Board of Education that no politician could criticize and no judicial nominee could openly oppose.
Instead, people with more conservative views on race relations adopted a different strategy to articulate their values. While supporting the basic idea of racial equality in Brown, they focused on the remedial aspects of desegregation, opposing busing and other remedial measures designed to integrate schools. They raised institutional objections to desegregation, objecting to federal interference with state’s rights and judicial interference with legislative prerogatives. They interpreted Brown and the Civil Rights movement as a commitment to colorblindness, which justified their opposition to affirmative action and other race conscious remedies, while insisting that government policies that had a predictable and foreseeably disproportionate impact on racial minorities but did not make overt racial classifications did not offend the colorblindness principle. Finally, conservative politicians, following rhetorical strategies pioneered by Richard Nixon and George Wallace, accepted the basic constitutional principle of Brown while playing on racial prejudices through so-called “wedge” issues like busing, crime and welfare.
In short, after the Civil Rights Act, the political debate would be framed within the parameters set by Brown, rather than as a debate over the legitimacy of Brown itself. In important ways the Supreme Court itself promoted this result, because its most controversial desegregation decisions following Brown spoke in terms of remedies. That made it possible for critics of busing to insist that they supported the original decision in Brown but simply disagreed about the best way to enforce it.
The story of Roe v. Wade would be very different. Critics of abortion rights have not simply contented themselves with accepting Roe's legitimacy while seeking to limit it or even undermine it indirectly, although some moderates, to be sure, have adopted precisely this strategy. Rather, many politicians to this day continue to argue that Roe v. Wade was wrongly decided and should be overturned. The debate over abortion rights has not occurred merely within the framework set by Roe but has continually put the very legitimacy of the decision into question. As a result, recent debates about judicial nominations have often focused, directly or indirectly, on the continued vitality and authority of Roe.
One of the reasons why the judicial politics of Roe and Brown turned out so differently concerns social movements and their relationship to political parties. Brown occurred at the very beginning of the Civil Rights Movement, and was ratified popularly shortly before the movement’s peak. Roe, on the other hand, is the product of a groundswell of popular support for women’s rights-- remember, the decision came only one year after Congress submitted the Equal Rights Amendment to the states-- and it helped energize conservative social movements that opposed both the ERA and Roe itself. The political coalitions that form the contemporary Republican Party are due in part to Roe and its aftermath, and from 1980 onward the Republican Party platform has opposed Roe in one form or another. At the margins at least, the decision in Roe helped make Ronald Reagan president, and it helped the contemporary Republican Party define itself.
With one major political party strongly in favor of abortion rights (the Democrats), and the other major political party strongly influenced by opponents of abortion (the Republicans), it was highly unlikely that Roe would become a framework of consensus in the way that Brown did. Moreover, unlike Brown, Roe served no obvious foreign policy goals of the United States. Finally, supporters of abortion rights were not able unequivocally to claim the moral high ground in the same way that supporters of racial equality could. To the contrary, opponents of abortion continued to insist that they, and not supporters held the moral high ground. In race relations, by contrast, conservatives eventually embraced Brown and insisted that they held the moral high ground when they advocated colorblindness as the true principle behind Brown and the Civil Rights Movement.