Even if abortion hadn't been a key issue in nearly every Supreme Court nomination since Roe v. Wade was decided in 1973, Samuel Alito would have to expect it to be the centerpiece of his nomination fight. Since Robert Bork's defeat, the trend among Republican nominees has been toward people with no recorded involvement with abortion issues. Alito, on the other hand, wrote a solo dissent in Planned Parenthood v. Casey, the 1992 case that reaffirmed Roe and remains the controlling case when the courts asses the constitutionality of abortion regulations.
In my last post, I noted that the idea that courts are “counter-majoritarian”
is not a useful basis for a critique of the courts. This is not to say, however, that there are no potential objections to judicial review from the standpoint of democratic
theory. The first set of objections is
strictly normative. On can concede—like John
Hart Ely did—that Roe is not “counter-majoritarian”
and still believe it was incorrectly decided, and the same is true for any
other case. Jeremy Waldron’s objections
I was interested to see Rosenfeld and Yglesias discuss
Jeffrey Rosen’s article in last week’s Times Magazine, in which Rosen discovered
that courts often tend to represent national majorities. Oddly, my co-blogger Dave and I presented a
paper at the Law & Society conference on this very topic.
My apologies for stepping in Matt Holt's territory, but I was preparing this quick post before Ezra's intervention (which makes it even more relevant), so I'd thought I'd go ahead anyway. I wanted to strongly recommend Antonia Maioni's superb book Parting at the Crossroads, which is a comparative study of the emergence of different health care policies in the United States and Canada. To put it in Brad Plumer's terms, Maioni (like Brad) emphasizes the importance of structural factors, with some additional explanations