Roe and Partisan Entrenchment

Slate's blog on legal issues.
June 28 2008 9:32 AM

Roe and Partisan Entrenchment

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?

Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.

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