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Politics and the Supreme Court


JUDGE Ruth Bader Ginsburg has won endorsement from enough key senators to forecast an easy confirmation to the Supreme Court, barring unforeseen developments.

That provides a calm setting for assessing one doctrinal speed bump in the process: her critique of the scope and footing of the 1973 Roe vs. Wade decision to legalize abortion.

In a 1984 speech and later articles, Judge Ginsburg suggested that Justice Harry A. Blackmun's majority opinion was unnecessarily "muscular." While she applauded Roe's voiding of the Texas law at issue, she wondered if Roe had outstripped its political support by striking down virtually every state abortion statute.

She argued that by truncating a political process that would eventually have legalized abortion, Roe prolonged the political dispute. She also said that perhaps Roe should have been founded not on the right to privacy but on women's right to equal protection of the laws.

Critics of Judge Ginsburg's stance fall into two camps. The indefatigable acolytes of former Judge Robert Bork hold that while there is a distinction between opposing a decision's outcome and questioning its reasoning, liberals blurred that distinction when they pilloried Judge Bork and sank his Supreme Court nomination in 1987.

These critics don't necessarily seek that fate for Judge Ginsburg, but they grumble that Judge Bork's opponents would be hypocritical to exempt her from similar censure.

There are two problems with the Bork camp's grousing. Before his nomination, Judge Bork had made a career of going before right-wing judicial groups to heap abuse on three decades of the court's doctrines.

In contrast, Judge Ginsburg's questioning of Roe has been measured and civil in tone. She doesn't burn bridges; she invites discussion.

Judge Bork gave away the game on the reasoning-results distinction during his nomination hearings. In light of his sharp attacks on the reasoning of the court's momentous 1965 decision in Griswold vs. Connecticut endorsing the right of marital privacy, Sen. Joseph Biden asked whether he had searched for alternative rationales to support it.

TTC Judge Bork curtly responded: "I have never engaged in that exercise." How concerned could he be with preserving the many epochal decisions whose reasoning he maligned if he thought it a waste of his time to find firmer supports for them?

By contrast, when Judge Ginsburg criticized Roe, she offered another basis for abortion rights: equal protection. As a lawyer who had often used the equal protection argument to advance women's rights, she clearly meant the suggestion seriously.

The second group of critics says that since prospects were unsure for securing reproductive rights in the state legislatures of the mid-1970s, Judge Ginsburg's hope for legislative solutions was unrealistic.

But this critique ignores the dynamic effect of the court's decisions on politics. A less sweeping Roe could have added to political momentum for reproductive rights without spurring quite the backlash that the actual decision did.

Speculating about might-have-beens obscures the far-reaching political point behind Judge Ginsburg's constitutional argument: A ruling based on equal protection could have pulled reproductive rights onto common ground with the broader struggle for equal rights for women.

Working women detached from or unsympathetic to the fight for abortion rights might have seen the denial of those rights as another way of denying women equal protection of the laws. Focusing the debate on an extension of the right to privacy isolated it from its relevance to a broader group.

Judge Ginsburg's re-examination of abortion politics illustrates how the court can more effectively open the way for a reform it judges constitutionally appropriate by recognizing political conditions and capabilities.

It also sheds light on her vision of the Supreme Court's role in governance and its relationship to the other branches of government: The court ought not to become overtly political, but it does owe the elected branches the respect of considering how its decisions affect their responsibilities.

Judge Ginsburg's analysis of Roe does not reveal a judge interested in the dogmatic pursuit of a political or ideological agenda. Rather, we can expect her to focus on cultivating the evolution of constitutional principles that are firmly grounded in important national values and reflect a mutually respectful relationship with the other branches and levels of government.

That perspective may not accord with the fancies of judicial activists right or left, but it's one well worth strengthening on the court.

Philip C. Metzger, a lawyer, is a former counsel to the Senate Judiciary Committee.

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