Vanderbilt Law Review


Neal Devins

First Page



This Article will argue that now is the time for the Court to decisively intervene in the abortion controversy by issuing a maximalist Roe-like decision; today's politics do not support an indeterminate standard like Casey's undue burden test. In other words, assuming that there is a constitutional right to abortion, today's Court should assume the heroic role Erwin Chemerinsky embraces in The Case Against the Supreme Court and other writings; specifically, the Court should "protect the rights of minorities who cannot rely on the political process." For Chemerinsky, protecting the rights of minorities is the "primary reason for having a Supreme Court," and is "why the Justices of the Supreme Court... are granted life tenure."

In explaining why today's Court should decisively protect abortion rights, this Article will evaluate a common criticism of Roe v. Wade, that the decision unnecessarily perpetuated counterproductive, divisive backlash by seeking to short circuit the political process and mandate an abortion code generally unacceptable to the nation. Left- leaning academics, advocates, and judges have made this criticism- including Ruth Bader Ginsburg, Cass Sunstein, Jeff Rosen, Mike Klarman, Gerald Rosenberg, and Bill Eskridge. In earlier writings, I too criticized Roe on these grounds and, correspondingly, celebrated Pennsylvania v. Casey for recalibrating abortion rights in ways that matched prevailing views of popular opinion and elected official preferences.

In the pages that follow, I will argue that I and others miscalculated the possible virtues of a rigid decisional rule. In particular, I will explain how party polarization and the related rise of the Tea Party calls into question the benefits of an indeterminate standard in the modern abortion context. And while I will not disavow earlier writings, I will contend that events of the past five years suggest that proponents of the Casey compromise need to recognize that today's political dynamic is far different than the political dynamic in 1973 (when Roe was decided) or 1992 (when Casey was decided)-so much so that any theory of constitutional rights moored to an understanding of the political process must take recent developments into account.10 For much the same reason, theories of Supreme Court decision making that look to the people or elected officials to engage in constitutional deliberation must too be updated to take into account party polarization.