Academic

Collett on Judicial Modesty

By Lawrence Solum

Teresa Stanton Collett (University of St. Thomas School of Law) has posted Judicial Modesty and Abortion (South Carolina Law Review, 2008) on SSRN. Here is the abstract:

During his confirmation hearings before the Judiciary Committee of the United States Senate, then Judge John Roberts testified that he wanted to be a "modest" judge. By this, he appears to have meant a judge who strives to interpret the law as the lawmakers intended, and provides judicial answers only to the questions necessary to resolve the case before the court. The purpose of this article is to consider the implications of this conception of "judicial modesty" for the constitutional jurisprudence of abortion.

The first section of this article will consider whether the Constitution, by its terms, historical understanding, or previous judicial interpretation, required the Court to constitutionalize questions related to abortion. My conclusions compel me to join the legions of legal scholars who have sharply criticized the reasoning employed by the Court in Roe v. Wade. Section two of the article attempts to determine whether the Court expanded or limited the impact of Roe's flawed reasoning in its subsequent abortion cases until the time of Chief Justice Robert's confirmation. The evidence largely supports the conclusion that the Court expanded its flawed reasoning, reaching new heights of judicial hubris in Planned Parenthood of Southeastern Pennsylvania v. Casey and new lows in its indifference to the evidentiary record in Stenberg v. Carhart. The third section of this article then carefully examines Ayotte v. Planned Parenthood of Northern New England and Gonzales v. Carhart. These are the only two decisions on abortion that have issued since Chief Justice Roberts assumed leadership of the Supreme Court. These cases appear to foreshadow greater judicial restraint when reviewing abortion-related legislation, and thus greater freedom for the people and their elected representatives to decide the proper limits of the state's interest in protecting women and the unborn life they carry within them. In the final section, I briefly speculate about the impact of a judicially modest approach in shaping future abortion jurisprudence. I predict fewer successful facial challenges to abortion regulations; greater emphasis on the requirements of constitutional and prudential standing; skepticism regarding claims of third-party representation; and careful review of the evidentiary record offered to support assertions that contested abortion regulations unduly burden women's liberty when seeking abortions. Contrary to claims made in abortion activitists' hysterical denunciations of Carhart II, the Court's decision upholding the federal partial-birth abortion ban, I conclude that a judicially modest approach is unlikely to result in the overruling of Roe v. Wade within the foreseeable future.

No one is a bigger fan of aretaic approaches to constitutional theory than me, and I'm certainly a huge supporter of constitutional interpretation that respects the original semantic menaing of the text, but the notion that the judicial virtue of modesty requires a restrained approach to abortion requires a good deal of explication in order to be made plausible.

First, I am not so sure that "modesty" is a judicial virtue in any meaningful sense.  The word only appears twice in the text of Collett's article & there is no anaylsis of what it means or why it would be considered a judicial virtue.

Second, there is no discussion of either the privileges or immunities clause of the 14th amendment or the Ninth Amendment.  Serious originalist defenders of unenumerated rights all suggest that these provisions are the key the questions that Collett raises.

Third, there is no discussion of either Barnett's originalist theory (which may well justify the functional equivalent of privacy rights) or Balkin's recent originalist defense of Roe v. Wade.

Full post as published by Legal Theory Blog on May 23, 2008 (boomark / email).