Courting disaster

What about the Warren Court? Do you feel it made too many aggressively liberal rulings?

I think that some of the Warren Court's decisions were a little lawless and jumped too far too fast. In so many areas the court's ideals didn't have clear constitutional foundations. The Griswold v. Connecticut case, which created the general right to privacy, was that kind of ridiculously weak opinion. The court didn't identify a clear constitutional basis for saying that the ban on contraceptives within marriage was impermissible. The court referred to "penumbras" and "emanations"[in the language of the ruling] from the Bill of Rights. But the Bill of Rights doesn't have "penumbras" and "emanations"; it just has a catalog of rights. It would have been better to say that the ban was never enforced and it was a recipe for arbitrary and unpredictable action by the police in a way that does violence to the rule of law.

I think the "one person, one vote" decision [Baker v. Carr, Reynolds v. Sims] -- which was in many ways a success -- has very weak constitutional roots. The court was responding in this case to allocations of voting power that were racist. But instead of insisting on the "one person, one vote" principle, it would have been more reasonable for the court to interpret the Equal Protection Clause more narrowly. For instance, a ruling that would have forbidden racially discriminatory and arbitrary allocations of voting power in this case would've been sufficient, ... rather than insisting on "one person, one vote."

It seems like your average person would hear that and say that doesn't seem fundamentally fair.

That may be true, but the Constitution doesn't have a fundamental fairness clause. There are lots of things that are fundamentally unfair that the Constitution doesn't forbid, like homelessness and starvation, which are in my view fundamentally unfair. However, at this stage, I wouldn't question the "one person, one vote" principle. Precedence has its claims and it's been around for a long time. It's been administrable and it's corrected both discrimination and arbitrariness. But hauling out a principle that doesn't have clear roots in the Constitution is properly questioned.

Did the overreaching decisions from the Warren Court pave the way for the conservative Rehnquist Court?

I wouldn't quite say that. In the early 20th century, the Supreme Court was striking down minimum wage and maximum hour laws, laws protecting labor unions, and laws forbidding child labor. Conservatives were very eager to get the courts to distort ambiguous constitutional provisions to serve right-wing ends. When conservatives lost that after the Roosevelt administration, there was a continuing effort in the '40s and '50s to get the court to do what the right wanted. The conservative eagerness to use judicial power for their partisan ends long predated the Warren Court.

The Supreme Court decision to legalize abortion has probably been one of the most controversial rulings from that era. Do you feel that, given how divisive the issue of abortion continues to be, Roe v. Wade was a mistake in any way?

Roe v. Wade itself was probably a horrible moment for liberal politics and almost certainly created the Moral Majority. Roe simultaneously demobilized the pro-choice movement in politics and fired up the pro-life movement everywhere. There probably would've been an Equal Rights Amendment without [Roe v. Wade], less agitation with the process, and stronger legal commitments to sex equality in general. It's absolutely true that if the court goes in the teeth of the public, it can hurt the cause that you're trying to promote.

How do you think the Roe v. Wade decision should've proceeded?

I think the Court should've said, in the Texas and Georgia cases [pertaining to Roe v. Wade], that these laws are so draconian in their reach that they're unconstitutional. The Texas law didn't allow abortion in cases of rape. So the court could've said very narrowly that we're not going to say anything general about what the Constitution says with respect to abortion -- but women who have been raped have a right to have an abortion. The Georgia law had procedural hurdles for women seeking abortions that seemed to intrude on women's interests and went well beyond what was necessary to make sure that the decision was reasonable and well-considered. The court could've said simply that the Texas law didn't have an exception in cases of rape, and the Georgia law went far beyond what is reasonable and necessary to protect fetal life. And that way there would've been a continuing dialogue between the states and the Supreme Court on the abortion issue.

But would that "continuing dialogue" between the states and the Supreme Court have eventually produced the broad set of abortion rights women currently have under the law?

Well, we don't want to fall in the trap of reading the Constitution to do whatever is good. This is the activist fallacy, on both the left and the right, which says that if something is very good, then the Constitution requires it. Even if the pro-choice people are correct, we have a Constitution that we're reading here. It's not true that the text and history of the Constitution, at the time, clearly supported the broad right to choose abortion. I am not saying that Roe v. Wade should be overruled. I don't think it should. It's been the law now for a long time. But I am saying that as a matter of pure self-interest, decisions like Roe often backfire.

So let's say the Roe v. Wade ruling was approached from a minimalist perspective, where would we be then regarding abortion rights?

The court might've gradually built up to something pretty close to Roe v. Wade without anything like the intense public backlash that Roe itself yielded. We would've eventually gotten there through the slow process of case-by-case decisions. Another possibility is that the court would permit some restrictions on abortion rights -- more restrictions than it now does -- and we would see some variability across the states. Some states would basically ban abortion, with exceptions for rape and incest, but most states would allow abortion, probably quite freely. We wouldn't have the intense political tangles we now do, and things would be much more congenial between pro-choice and pro-life people.

Finally, have you found it difficult to have any sort of dialogue with fundamentalists, even though being a minimalist means you agree with some of their criticisms?

Yeah, I have. I find of number of them [fundamentalists] dogmatic and extremely confident. They like to accuse people who disagree with them of bad faith, and they think the word "liberal" is disqualifying of the need to engage in arguments. The most you can hope for is that people who are still thinking will see that their view has to be defended rather than shouted.

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