Harvard Law Prof. Charles Fried, who testified to the Senate in support of both Roberts and Alito Supreme Court nominations, expresses alarm at the Court’s recent coerced pregnancy decision. (I call it by its positive name, rather than the negative ‘anti-abortion.’)
There’s nothing new about Fried’s analysis. He relies on an old Harvardian penchant to reify formal legal doctrine and ignore or deny the unique effects of individual judges. This is undoubtedly what he believed when he answered Senator Feinstein’s question “whether I thought a Justice Roberts would vote to overrule Roe v. Wade.”
Prof. Fried recalls he told the Senator, “I thought he would not, at least not in its later, less absolute version… which protected against governments imposing an ‘undue burden’ on a woman’s right to choose abortion before the fetus’s viability. I told Senator Feinstein that the formulation, and the principles behind it, had become so deeply rooted … that its abandonment would produce … violent unsettling of the law….” Fried adds, “The next year, when I testified in support of Samuel Alito, Senator Feinstein asked me the same question. I gave the same answer.”
Now, in a New York Times Op-Ed piece, 26 April 2007, Fried says he’s worried. But he focuses his critique on Kennedy, who wrote for the majority, not on Roberts or Alito who were in that majority. “Kennedy,” says Fried, “fails to come to grips with his own jurisprudence” and “was not quite willing to embrace his own conclusion.” This is disingenuous. Fried wants Kennedy, widely regarded as the “swing vote” on the court, to save the law from “violent unsettling.” He fails to acknowledge that the addition of Roberts and Alito to the court is precisely what created the possibility of a majority to support Kennedy’s opinion. And in this, he exposes the naiveté of the notion that any law has a life of its own beyond the predilections of judges.
The notion that judges are impersonal actors may sustain popular belief in legal order, but it is far from what a scholar should enunciate to a Senator trying to predict what a potential Justice will do. The Senator deserves to hear what Oliver Wendell Holmes wrote in 1918: “for legal purposes a right is only the hypostasis of a prophecy — the imagination of a substance…” [Harvard Law Review, Vol. 32, No. 1 (Nov., 1918), p. 42]. There are no rights that enforce themselves. There are no rights that do not involve interpretation. There are no judicial decisions about rights that do not turn on how judges view the facts of a particular case.
Senator Feinstein should not have been encouraged to believe she could set aside her concerns about Roe v. Wade. She should have been told there is no law “so deeply rooted” it may not be overturned. She was already suspicious that these particular nominees might do so. Her caution should have been encouraged, not dismissed.
Fried says the recent decision doesn’t change his mind about the stability of Roe v. Wade, “because the procedure that was banned, intact dilation and extraction, is too rarely used and its importance too dubious to make much difference.”. This is an example of de minimis non curat lex: the law does not care about trivial things. “Too rare” and “too dubious” means that women whose pregnancies are mandated (because the procedure is banned) are too few in number and their circumstances not sufficiently significant (to the law?). They don’t count, so to speak.
“Still,” Fried says, “this most recent decision is disturbing….” He explains that, aside from Kennedy’s failure to live up to his own jurisprudence (whatever that means in a theory of reified, disembodied law), the “more far-reaching reason” he is disturbed is that there are lots more decisions up for grabs. Roe v. Wade is only one of many cases the Court majority may re-address. He is especially afraid the slew of legally “incoherent” decisions determined by the previous swing justice, Sandra O’Connor, will become targets for the Court to “eliminate … confusion and restore principle” (is this what the new majority is doing?), and “the cry will go up that the court is simply reflecting its changed political complexion, not reasoning carefully and promoting stability and clarity in the law. And last week’s decision will lend plausibility to that charge.”
What about that decision will “lend plausibility” to the charge of political bias? Is it really Kennedy’s failure “to come to grips with his own jurisprudence”? Or is it the presence on the bench of two more right wing justices about whom Fried counseled, “Don’t Worry”? The wake-up call should be to those who believe in a magical law that lives by its own roots. This is a fairy tale. We must come to grips with such naive jurisprudence.
Fried complains, “Kennedy… suggested that perhaps as applied in a particular case in which there was an increased health risk the ban might be unconstitutional after all,” and asks, “What can that mean?” Well, the most important thing it can mean is that the swing justice may be willing to swing again, moving the majority to the other side in some future case. We are lucky Kennedy “was not quite willing to embrace his own conclusion.” I suspect Prof. Fried may be wishing he had not embraced his own conclusion at the Senate hearings. It seems that “violent unsettling of the law” is what we’re in for (in more than one venue) under the current regime.