Monday, September 19, 2022
Balkin on "Abortion and Partisan Entrenchment"
Jack Balkin has posted Abortion and Partisan Entrenchment on SSRN in draft format. The abstract states:
In overturning Roe v. Wade, The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization achieved a long-sought victory of the Republican Party. Dobbs is part of a larger conservative constitutional revolution. This revolution has been achieved through a strategy of partisan entrenchment, in which political parties, led by Presidents, stock the courts with jurists allied with the party's commitments of ideology and interest.
Over time, partisan entrenchment by both parties can keep the Supreme Court's ideological center roughly aligned with the center of national public opinion. But this alignment need not occur, and the Court's current constitutional revolution reflects this fact. Moreover, if the country is highly polarized, as it is now, there is even less reason to think that the ideological center of the Supreme Court will have much relationship to the center of public opinion. It is far more likely to reflect the center of elite opinion in whichever major party currently controls the Court.
Although Republicans dominated Supreme Court appointments between 1969 to 2020, Roe v. Wade survived for half a century. This was partly due to luck. But another important reason is that members of the conservative legal movement did not constitute a majority of the Court until 2018. Once that happened, Roe's demise became almost certain. Entrenchment of movement-identified legal conservatives, and not simply Republicans, was the key to overturning Roe.
Once the conservative legal movement has achieved most of its central goals, however, it may lose cohesion, as the country faces new issues and the Republican Party continues to evolve into a Trumpist party. Different parts of the conservative legal movement may find themselves increasingly at odds. New issues will emerge for which the conservative legal movement was not organized. These new issues may create fractures among Court’s conservative majority.
Moreover, Roe's demise has created new problems for the Republican Party. Party coalitions affect the exercise of judicial review--that is the point of partisan entrenchment--but the exercise of judicial review also affects party coalitions. Judicial review can make it easier for a political party to maintain its base of voters; or, conversely, judicial review can create openings for a party’s opponents to pick off its voters and split its coalition.
Roe v. Wade made the modern Republican Party possible. Staunchly pro-life voters could join with voters who supported some abortion rights but voted Republican for other reasons. The latter could vote Republican because no matter how much Republican politicians catered to pro-life voters, Roe kept them from banning abortion completely. Dobbs made abortion prohibition possible and highly salient, and placed different parts of the Republican coalition in tension with each other. To keep their coalition together, Republican politicians may now try to change the subject. But the party's most avidly pro-life voters, who dominate primary contests, may not let them. Although the long-term electoral result is not foreordained, Dobbs has created opportunities for opposition politicians to shrink and fracture the Republican coalition.
Politicians always act in the shadow of other institutional features of the American constitutional system, including judicial review. The Court’s decisions affect political coalitions, but that is because of decisions made by political actors over whom they have no control. Supreme Court decisions may make or break political coalitions, but not as the Justices either understand or intend.