Saturday, June 28, 2008 - Posts

• Roe and Partisan Entrenchment

  Posted Saturday, June 28, 2008 9:32 AM | By Jack Balkin
  
  
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  David, far be it from me to suggest that elections don't matter a great deal for constitutional development. That they do is the central claim of Sandy Levinson's and my theory of partisan entrenchment. It's nice to know we have a fan. But there is still the question of why Roe v. Wade survived in the face of a series of Republican Supreme Court appointments, a question that, at first glance, the partisan entrenchment theory would seem not to answer very well. Since I'm one of the advocates of the theory, it has fallen to me to deal with the problem.
  
  Your explanation to this quandary appears to be just dumb luck. Well, dumb luck does explain some things, but I would prefer to push the question a little further. That is because Roe is not just any decision that happened to survive. It's one of the most important decisions in contemporary American politics, and the Republican Party's platform has, since 1980, been devoted to overturning it.
  
  So, if Roe has survived five Republican appointments since the failure of the Bork nomination, it's worth asking whether the cause is just dumb luck. Are the Republicans just that incompetent on this key issue?

  continue reading at Balkinization ...

• Roe, Heller, Politics, and Jack

  Posted Saturday, June 28, 2008 1:26 AM | By David Barron
  
  
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  Jack—You really should not be required to repeat yourself, and so I apoligize for making you go through it all again. But at last, I get it! It's not the justices who are acting strategically, only the presidents who appoints them. Once they appoint them, justices do as they do. Which is why Reagan appointed Kennedy—he knew he passed the reverse litmus test on Roe. The theory is working great. After all, a nonstratgegic Republican president would have appointed someone like Scalia. Or, even dumber, Bork!  Oh, wait ... OK, maybe Reagan's not such a strategic figure. It's not like Bush pere would have appointed someone who thinks Roe should be overruled, like, say, Clarence Thomas. Oh, wait, again ... 

  It's a problem for a theory, I think, when neither of the actors in a position to act in accord with it (that is, the presidents or the justices) seem to be ... reliably acting in accord with it. And while the Roe right in some form thus far survives, some think that has more to do with the Senate refusing to do what the prez wanted (see Bork above) than with the prez faking everybody out. 

  But why should we care about this debate? One reason might be that it would warn supporters of the Roe right from taking false comfort in the political-calculation theory's prediction that it will survive a long line of Republican administrations—just as it would encourage Roe's opponents to take heart! 

  In short, it's my contention that elections matter more for constitutional development than, paradoxically, for the super-sophisticated theory of electoral-jurisprudence theory (with its assumption of canny presidents—and maybe even justices—always seeking out some clever equilibrium) indicates.  

  Filed under: Heller

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