The Myth of Judicial Activism: Making Sense of Supreme Court Decisions by Kermit Roosevelt III

Author:Kermit Roosevelt III
Language: eng
Format: epub
Published: 2008-01-18T21:25:00+00:00

Fundamental Rights, Undue Burdens, and the Test of Sincerity

One thing that the Court could do would be to simply balance the interests itself. That is essentially the approach that Roe took. It seemed obviously illegitimate in Roe because the Court gave no reason why the balancing task could not be left with the legislature. But such reasons do exist, and to that extent the Court's decision to conduct the balancing itself can be justified.

Still, such an approach looks more like doing the legislature's job than reviewing its performance, and the modern Supreme Court tends to avoid it. Instead, its substantive due process cases focus on whether the asserted right is fundamental. This approach, I have suggested, is not a good one. It essentially ignores the key question of whether there are reasons to doubt the legislature's balancing. And it produces a stark dichotomy. Some rights are fundamental and can almost never be restricted, even for very good reasons-only "compelling" state interests suffice. Most are not; they are mere "liberty interests" and can be overridden for very weak reasons-any "legitimate" state interest is enough.

This approach is too rigid to work well as a method of enforcing the public interest requirement. It sets aside the legislature's resolution of conflicts between interests when there is no good reason to be suspicious, and it defers when such reasons do exist. Its tendency toward absolute deference or absolute rejection seems likely to produce a lot of errors-more, certainly, than an approach that focused on the reasons for and against deference and allowed for some intermediate method of review.

In the abortion context, in fact, the Court has moved away from the binary choice between fundamental rights and mere liberty interests. Though Casey claims to reaffirm the central holding of Roe, its "undue burden" standard is less demanding and more malleable than Roe's test. Its applications are uncertain. Justice Kennedy, one of the authors of the lead Casey opinion, believes that it allows states to ban "partial birth" abortions; the other two authors, Justices O'Connor and Souter, do not. (In Stenberg v. Carhart, the Court struck down Nebraska's partial birth ban by a vote of five to four, a result that Justice O'Connor's replacement by Justice Alito may change when the issue comes before the Court again.)"

Casey has created a space within which debate can continue, and, to the extent that Roe short-circuited the democratic process by which American society was resolving the clash of values, that may be a good thing. But simply arguing over what constitutes an undue burden is unlikely to bring a consensus solution that both sides can accept. The more likely outcome is that more conservative justices will chip away at Roe without explicitly overruling it, producing a regime under which abortion remains relatively available to the wealthy and well-connected but is increasingly inaccessible to the poor. That simply magnifies the current equality concerns.

A better approach would focus explicitly on the constitutional meaning at stake: whether the legislature has struck the right balance between the competing values of life and liberty.

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