Issues like abortion rights highlight ongoing debates over judicial activism, restraint

Oct 24 2006

Although it is necessary to give some thought to what should be decided by judges and what should be determined by legislators, the "current fashion of framing substantive issues," such as abortion rights, "in terms of activism or restraint can only take you so far," Ann Althouse, law professor at the University of Wisconsin, writes in a Wall Street Journal opinion piece.

According to Althouse, there was a time when people "openly praised the activist judge," but now "we all seem to love to wrap ourselves in the mantle of the new fashion" that "comes at the price of candor."

Although the Supreme Court at one time "wrongly" believed that "enshrining abortion rights in the Constitution would spare us a torturous political fight," the court's decision in Roe v. Wade -- the 1973 Supreme Court decision that effectively outlawed state abortion bans -- "laid the groundwork for decades of controversial cases and contentious confirmation battles," according to Althouse.

However, it also is a "delusion to think that matters would improve if the court rescinded" its decision in Roe because "[n]ew political fights would spring up and produce a new set of cases that would plunge the courts into even more troublesome legal disputes," Althouse writes.

Although this situation "easily translates into the conclusion" that Roe "should not be overturned," such a conclusion is an "oblique argument that avoids speaking directly about the importance or reality of the rights in question," according to Althouse.

The argument against overturning Roe "appeals to our preferences and aversions about judicial behavior," Althouse writes, adding that it also "assumes that these days we like our judges restrained.

With this assumption, we're reconfiguring arguments into plans for, or limitations about, minimizing judicial activism" (Althouse, Wall Street Journal, 10/21).