THE PROJECTION OF THE LEGAL SCHOLAR.

THE PROJECTION OF THE LEGAL SCHOLAR. Benjamin Wittes asks:

Imagine, if you can, all nine justices issuing a single opinion of more than 120 pages -- with no concurrences or dissents -- in a matter as factually dense, politically charged, and legally difficult as the Microsoft antitrust case. Imagine dissents, when necessary, written respectfully and without nasty personal barbs or insinuations of bad faith. Imagine nakedly ideological splits becoming vanishingly rare -- with at least one liberal almost always joining the conservatives or vice versa. How quickly would the public acquire a different image of the high Court? And how much more respect would it then command?

The answer, of course, is that it would make virtually no difference to the public perception of the Court, since virtually nobody without a professional obligation reads judicial opinions. Only a vanishingly small part of the population could tell you whether there was more unanimity under John Marshall than under William Rehnquist. To take two examples, Earl Warren strove to get unanimity in the desegregation cases to try to pre-empt massive southern resistance, and the result was ... massive southern resistance. (And once a consensus against segregation emerged, the existence of a dissent in Brown would have no more undermined its legitimacy than the dissent in the case that effectively desegregated law schools.) Conversely, Bush v. Gore was a scandalously weak 5-4 opinion on an extremely high-profile issue, and the result was that the Court was held in marginally less esteem by Democrats but marginally more esteem by Republicans. Even the most cursory empirical analysis will make it clear that, for better or worse, the public evaluates the courts on results, not reasoning. Roe would have generated the same opposition if it had been decided 9-0 (rather than 7-2 with two mild dissents) and the majority opinion was a model of legal craftsmanship.

It should also be noted that a similarly naive solipsism is behind Wittes' infamous claim that Roe has been bad for the cause of reproductive rights. His argument, while increasingly common, is so wrong (if not for Roe would abortion be legal in 63 states? Would states and Congress be less likely to pass regulations if given unlimited leeway? Would the pro-choice movement be so powerful that Clinton would have vetoed popular "partial birth" legislation with a nicer pen? Bush would make his long-distance phone call to pro-lifers in Latin? Help me out here...) one wonders how anyone could believe it. As this recent piece also suggests, the answer seems to be that many proponents of the "contrarian" anti-Roe thesis seem to, without a shred of evidence, project the view of the courts held by 1950s-era legal process scholars onto the public. In other words, such arguments are exceptionally implausible not only in specific cases but in their underlying theoretical assumptions.

--Scott Lemieux

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