Wednesday, April 3, 2013
judicial decision that vindicates minority rights inevitably give birth to a
special kind of backlash, a more virulent reaction than legislation achieving
the same result would produce? We examine this question with respect to Roe v. Wade, so often invoked as the
paradigmatic case of court-caused backlash, and with the pending marriage cases
in mind. As we have shown, conflict over abortion escalated before the Supreme
Court ever ruled in Roe, driven
by movements struggling over legislative reform and Republican Party efforts to
recruit voters historically aligned with the Democratic Party. These and other
features of the abortion conflict suggest that the Court's decision in Roe was not the abortion conflict's
sole or even its principal cause.
When change through adjudication or legislation threatens the status quo, it can prompt counter-mobilization and "backlash." We do not doubt that adjudication can prompt backlash. But we do doubt that adjudication is distinctively more likely than legislation to prompt backlash and that the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement.