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Legislative Defaults: Interbranch Power Sharing and Abortion Politics

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Polity

Abstract

A generation of scholars has evaluated landmark Supreme Court rulings like Roe v. Wade with the assumption that counter-majoritarian judges are able to impose their will on elected legislators. Much recent scholarship on the courts has shown, however, that the assumptions about institutional power that underlie the counter-majoritarian model of judicial review are wrong. Judicial capacities to strike down laws are not fixed by constitutional design, but are largely the result of choices made by elected officials. As a result, scholars need to make careful empirical investigations into choices by elected officials that empower judges before declaring that a judicial decision thwarts the will of those elected officials. This article argues that in addition to looking at instances where legislators take overt steps to empower courts, scholars also have to consider whether legislators have defaulted to the courts. Examining the case of abortion after Roe v. Wade, we argue that there is little basis for the belief that the court's decision was necessarily “final.” A constitutional barrier to bans on pre-viability abortions has developed largely because majorities among elected officials in the federal government and most states have supported (or declined opportunities to challenge) that policy. Rather than being an illustration of judicial supremacy, Roe v. Wade represents a “legislative default,” that is, a case where a majority of legislators either favor the policy instituted by the courts or prefer to allow the courts to assume responsibility for resolving a divisive policy question.

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Notes

  1. The framework has been dominant since at least the time of the early Warren Court. Bickel produced the seminal works articulating the “counter-majoritarian” problem in 1957. For an overview of the development and persistence of the framework in the legal academy, see Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1998); Barry Freidman, “The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five,” Yale Law Journal 112 (2002): 153; Thomas Keck, The Most Activist Supreme Court in History (Chicago: University of Chicago Press, 2004). There have been some skeptics who question the framework's value, first and most famously Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 279–95, whose main point was that the Court is not structured to act often in a counter-majoritarian fashion. Other scholars have noted the inability of courts to implement their policy choices effectively, for example, Donald L. Horowitz, The Courts and Social Policy (Washington, DC: Brookings Institution, 1977); Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991); Lisa Conant, Justice Contained: Law and Politics in the European Union (Ithaca, NY: Cornell University Press, 2002); Michael Klarman, From Jim Crow to Civil Rights (New York: Oxford University Press, 2004).

  2. Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803). One indicator of the central importance of the Marbury myth for conventional scholarship is the fact that the myth is repeated as a foundational claim for such seminal works as Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), 1–15; and Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge and New York: Cambridge University Press, 2002), 21–25. These otherwise very different books offer nearly identical accounts of the Supreme Court's institutional power as rooted in life tenure and Marbury, accounts that recent scholarship on judicial empowerment reveals to be ahistorical and incomplete.

  3. Mark Graber, “The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power,” Constitutional Commentary 12 (1995): 67; Mark Graber, “The Problematic Establishment of Judicial Review,” in The Supreme Court in American Politics, ed. Cornell Clayton and Howard Gillman (Lawrence: University Press of Kansas, 1999); Mark Graber, “Establishing Judicial Review: Marbury v. The Judiciary Act of 1789,” Tulsa Law Review 38 (2003): 609.

  4. Mark Graber, “Passive-Aggressive Virtues,” 71. See also Michael J. Klarman, “How Great Were the Great Marshall Court Decisions?” Virginia Law Review 87 (October 2001): 1111–84, arguing that the contemporaneous political impact of landmark Marshall court rulings has been greatly overstated, as they either ratified an existing consensus among political elites or were largely ignored.

  5. Mark Graber, “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (1993): 35–73; Howard Gillman, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” American Political Science Review 96 (2002): 511–24; Justin Crowe, “The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft,” Journal of Politics 69 (2007): 73–87; George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge and New York: Cambridge University Press, 2003); Lucas A. Powe, The Warren Court and American Politics (Cambridge: Belknap Press of Harvard University Press, 2000); Kevin J. McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago: University of Chicago Press, 2004); Michael Klarman, “Majoritarian Judicial Review: The Entrenchment Problem,” Georgetown Law Review 85 (1997): 491–553; Michael Klarman, From Jim Crow to Civil Rights (New York: Oxford University Press, 2004).

  6. Graber, “Non-Majoritarian Difficulty”; Gillman, “How Political Parties Can Use the Courts”; Lovell, Legislative Deferrals; McMahon, Reconsidering Roosevelt; Powe, Warren Court; Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007). The growing literature on political empowerment resonates with the work of a variety of other scholars who have examined interbranch processes that do not fit the simplifying assumptions of the conventional counter-majoritarian model, including R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washington, DC: Brookings Institution, 1983); R. Shep Melnick, Between the Lines: Interpreting Welfare Rights (Washington, DC: Brookings Institution, 1994); Charles R. Shipan, “The Legislative Design of Judicial Review: A Formal Analysis,” Journal of Theoretical Politics 12 (2002): 269–304; John M. De Figueiredo and Emerson H. Tiller, “Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary,” Journal of Law & Economics 39 (1996): 435–62; Mark C. Miller and Jeb Barnes, eds., Making Policy, Making Law: An Interbranch Perspective (Washington, DC: Georgetown University Press, 2004); Louis Fisher and Neal Devins, The Political Dynamics of Constitutional Law, 4th edition (St. Paul, MN: West, 2005); Scott Barclay and Shauna Fisher, “Said and Unsaid: State Legislative Signaling to State Courts over Same Sex Marriage 1990–2004,” Law & Policy 30 (2008): 254–75; J. Mitchell Pickerill and Cornell W. Clayton, “The Rehnquist Court and the Political Dynamics of Federalism,” Perspectives on Politics 2 (2004): 233–48. For overviews of the emerging interbranch perspective, see Jeb Barnes, “Bringing the Courts Back In: Interbranch Perspectives on the Role of the Courts in American Politics and Policy Making,” Annual Review of Political Science 10 (2007): 25–43; Mark Graber, “Constructing Judicial Review,” Annual Review of Political Science 8 (2005): 425–51. Studies examining cases outside the U.S. have similarly found that elected officials sometimes deliberately empowered judges. See, for example, Martin Shapiro, Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence (New York: Free Press of Glencoe, 1964); Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge: Harvard University Press, 2004); James B. Kelly, Governing With the Charter (Vancouver: University of British Columbia Press, 2006); Rachel Cichowski, The European Court and Civil Society (New York: Cambridge University Press, 2007); Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (New York: Cambridge University Press, 2007).

  7. A few prominent examples will serve to illustrate how scholars ignore recent empirical work on the evolution and fragility of judicial power. James Gibson and Gregory A. Calderia, in a massive survey on public attitudes toward the Supreme Court, measured respondent knowledge of the Court by seeing whether respondents could “correctly” answer “Supreme Court” to the question: “Do you happen to know who has the last say when there is a conflict over the meaning of the Constitution—the U.S. Supreme Court, the U.S. Congress, or the President?” See Citizens, Courts and Confirmations (Princeton: Princeton University Press, 2009), 28. Richard Posner blames the Court's “political ineptitude” for its continued involvement in some controversial policy areas while ignoring the possibility that judges may resolve certain issues because legislatures defer to the courts. See Richard Posner, “Foreword: A Political Court,” Harvard Law Review 119 (2005): 39. Segal and Spaeth, Attitudinal Model, begin their landmark explication of the attitudinal model of decisionmaking by claiming that the Court has had stable powers since Marbury to reverse legislators at will. Jeffrey A. Segal, “Separation-of-Powers Games in the Positive Theory of Congress and Courts,” The American Political Science Review 91 (1997): 28–44 has also tried to refute empirically the idea that judges respond to shifts in legislative preferences. His argument is based on measures of judges’ and legislators’ preferences that are aggregated across a broad range of policy areas. Such measures will mask effects that are likely to be concentrated in a relatively small number of particularly divisive (but very important) policy controversies that cut across party alignments. There is no reason to think that judges have the same capacity to act independently across all policy areas, and no “scientific” reason to ignore effects that are decisive in some important policy areas simply because they do not show as significant in aggregate measures that dilute such affects.

  8. Gillman, “How Political Parties Use the Courts”; Graber, “Non-Majoritarian Difficulty”; Lovell, Legislative Deferrals.

  9. See, for example, John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82 (1973): 920–49; Faye D. Ginsburg, Contested Lives: The Abortion Debate in an American Community, updated ed. (Berkeley: University of California Press, 1998); Robert Bork, The Tempting of America (New York: Simon & Schuster, 1990), 111–16; Michael Paulsen, “The Worst Constitutional Decision of All Time,” Notre Dame Law Review 78 (2003): 995.

  10. Keck, Most Activist Court, 40–41.

  11. Dahl, “Decision-Making in a Democracy”; Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan (New Haven: Yale University Press, 1999).

  12. Thomas Keck, “Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?” American Political Science Review 101 (May 2007): 321–38.

  13. See Art. III, Sec. 2.

  14. See, for example, Segal and Spaeth, Attitudinal Model, 94.

  15. Lovell, Legislative Deferrals, chapter 5.

  16. The Court did rule Congress's denial of habeas unconstitutional in Boumediene v. Bush, 553 U.S. — (2008), but the Court carved out only a very narrow exception to Congress's power to control its jurisdiction. The Court's reasoning was tied closely to habeas and executive detention, and implicitly sanctioned new statutory limits on habeas jurisdiction so long as the limits were accompanied by acceptable procedural safeguards.

  17. Mark Graber, “Legal, Strategic, or Legal Strategy,” in The Supreme Court and American Political Development, ed. Ronald. Kahn and Ken Kersch (Lawrence: University Press of Kansas, 2006).

  18. Peter L. Strauss, Introduction to Administrative Justice in the United States (Durham, NC: Carolina Academic Press, 1989); Martin Shapiro, The Supreme Court and Administrative Agencies (New York: Free Press, 1968); Martin Shapiro, Who Guards The Guardians? Judicial Control of Administration (Athens: University of Georgia Press, 1988).

  19. Lovell, Legislative Deferrals, chapter 6.

  20. Compare, for example, R.A.V. v. St. Paul, 505 U.S. 377 (1992) to Wisconsin v. Mitchell, 508 U.S. 476 (1993).

  21. Mark Tushnet, Weak Courts, Strong Rights (Princeton: Princeton University Press, 2008), 44.

  22. See, for example, South Dakota v. Dole, 483 U.S. 203 (1987), Rust v. Sullivan, 500 U.S. 173 (1991).

  23. Graber, “Non-Majoritarian Difficulty”; Lovell, Legislative Deferrals.

  24. For example, a significant number of Massachusetts state legislators shifted towards support of same-sex marriage rights following the Goodridge decision. See, for example, Daniel Pinello, America's Struggle For Same-Sex Marriage (New York: Cambridge University Press, 2006), 182.

  25. Sven Steinmo, Kathleen Thelen, and Frank Longstreth, Structuring Institutions (New York: Cambridge University Press, 1992); George Tsebelis, Veto Players: How Political Institutions Work (Princeton: Princeton University Press, 2007).

  26. Jeb Barnes, “Bringing the Courts Back In,” 28–31, provides a concise summary of the literature on separation of powers games and veto points. One exception to the tendency of modelers to focus on statutory cases is Brian Sala and James F. Spriggs, “Designing Tests of the Supreme Court and the Separation of Powers,” Political Research Quarterly 57 (2004): 197–208, which considers constitutional cases and discusses the reasons why most modelers do not.

  27. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

  28. Carl Hulse, “Republican Senators Block Pay Discrimination Measure,” New York Times, April 14, 2008.

  29. Note also that the presence of many minority veto points in legislatures cuts both ways. Minority control of veto points makes it more likely that there will be laws on the books that are no longer supported by a majority of legislators. This means that it is more likely that there will be cases where legislative majorities default to the courts because they prefer the Court's position. This can be true when the Supreme Court strikes down a law after a legislative minority blocks repeal, as, for example, is arguably the case in Griswold v Connecticut, 381 U.S. 479 (1965). David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), chapter 2.

  30. Graber, “Non-Majoritarian Difficulty”; Lovell, Legislative Deferrals.

  31. See, for example, the discussion of Griswold v. Connecticut in Mark Graber, “False Modesty: Felix Frankfurter and the Tradition of Judicial Restraint,” Washburn Law Journal 47 (2007): 23–34.

  32. Lawrence v. Texas, 539 U.S. 558 (2003); Klarman, “Majoritarian Judicial Review”; Powe, Warren Court.

  33. Note also that the Court's power to reverse state laws is itself dependent on statutes passed by Congress that spell out the conditions and procedures under which the Court takes jurisdiction in such cases. As a result, scholars may want to start characterizing some cases where the Court strikes down state laws as disputes between the federal government and a state government rather than a dispute between elected officials and unelected officials.

  34. Mark V. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2007).

  35. See, for example, Graber, “Non-Majoritarian Difficulty”; Mark Graber, Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics (Princeton: Princeton University Press, 1996); Neal Devins, Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate (Baltimore: Johns Hopkins University Press, 1996); Susan Burgess, Contest for Constitutional Authority (Lawrence: University Press of Kansas, 1992). Such accounts have not stopped scholars and other observers from offering the more conventional countermajoritarian account of Roe. (See note 10.)

  36. Graber, “Non-Majoritarian Difficulty”; Melody Rose, Safe, Legal and Unavailable? Abortion Politics in the United States (Washington, DC: CQ Press, 2007), 167–72.

  37. 505 U.S. 833 (1992). See Scott E. Lemieux and George I. Lovell, “Understanding the Impact and Visibility of Ideological Change on the Supreme Court,” Studies in Law, Politics and Society 44 (2008): 18–19.

  38. Gonzales v. Carhart, 550 U.S. 124 (2007).

  39. James C. Mohr, Abortion in America (New York: Oxford University Press, 1978).

  40. Leslie Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997), 61; Barbara Hinkson Craig and David M. O’Brien, Abortion and American Politics (Chatham, NJ: Chatham House, 1993), 9.

  41. Mohr, Abortion; Karen Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984), chapter 2; Rosalind P. Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom (New York: Longman, 1984), 78–83; Regan, When Abortion Was a Crime, chapter 3.

  42. Graber, Rethinking Abortion, chapter 2.

  43. Jeffrey Pressman and Aaron Wildavsky, Implementation: How Great Expectations in Washington Are Dashed in Oakland (Berkeley: University of California Press, 1984).

  44. For further discussion of abortion reform at the state level in the U.S., see Scott Lemieux, “Constitutional Politics and the Political Impact of Abortion Litigation: Judicial Power and Judicial Independence in Comparative Perspective,” Doctoral Dissertation, University of Washington (2004), chapter 6.

  45. Jane Jenson, “Getting to Morgentaler,” in The Politics of Abortion, ed. Janine Brodie, Shelley A. M. Gavigan, and Jane Jenson (Toronto, Ontario: Oxford University Press, 1992), 41.

  46. Doe v. Bolton, 410 U.S. 179 (1973).

  47. Graber, Rethinking Abortion; Reagan, When Abortion Was a Crime, chapters 4–7; Luker, Abortion and the Politics of Motherhood.

  48. Rosenberg, Hollow Hope, chapter 9; Garrow, Liberty and Sexuality; Luker, Abortion and the Politics of Motherhood.

  49. Stenberg v. Carhart, 530 U.S. 914 (2000). See Planned Parenthood v. Casey (1992) and Gonzales v. Carhart (2007).

  50. Assessments of the impact of Roe also depend on what one believes the holding in Roe requires. If one reads the core of Roe as the view that the state cannot ban pre-viability abortions and that post-viability proscriptions must make an exception for the protection of a woman's health, there is very little basis for claiming that the Court usurped national legislative majorities. If one reads Roe in terms of some of its most expansive early applications, such as in Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the evidence is more mixed. Legislators in many states favored the regulations that the Court struck down between Roe and Casey. Nevertheless, the pattern since the Court backed down from those earlier expansive readings makes it difficult to believe that a significant number of states remain eager to restore the pre-Roe legal regime.

  51. A CNN/Opinion Research poll conducted in January 2007 found that 62 percent of the people surveyed “would not” overturn Roe v. Wade, while only 29 percent “would.” This is broadly consistent with most public opinion surveys about Roe, which generally show it supported by roughly 2-to-1 margins. See http://www.pollingreport.com/abortion.htm, last accessed November 15, 2008.

  52. The Court upheld the ban on federal funding in Harris v. McRae, 448 U.S. 297 (1980), a ruling that built on one upholding a state ban in Maher v. Roe, 432 U.S. 464 (1977). The amendments to the Health Program were upheld by lower federal courts and never challenged before the Supreme Court: cf. Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d. 308 (9th Cir. 1974), Taylor v. St. Vincent's Hospital, 523 F.2d 75 (9th Cir. 1975). The Court also upheld the Reagan administration “gag rule” that prevented federally funded family-planning centers from discussing abortion in Rust v. Sullivan (1991). For a complete list of abortion laws passed by Congress in the two decades following Roe, see Craig and O’Brien, Abortion and American Politics, 112–13.

  53. Scott E. Lemieux, “Partial-Birth's Trojan Horse,” The American Prospect Online, November 20, 2006.

  54. In a striking example of the complex dynamics at play, Senate Majority leader Harry Reid condemned the Supreme Court for upholding the law even though he had voted for the legislation. See Bill Meares, “Justices Uphold Ban on Abortion Procedure,” April 18, 2007, http://www.cnn.com/2007/LAW/04/18/scotus.abortion/index.html?section=cnn_latest. Last accessed July 26, 2008.

  55. See, for example, Durousseau v. United States, 10 U.S. 307 (1810), Ex Parte McCardle, 74 U.S. 506 (1869), and Senn v. Tile Layers Protective Union, 301 U.S. 468 (1937).

  56. It might be objected that the failure of Congress to limit the impact of Roe by enacting federal abortion regulations is the result of legislators’ commitments to federalism. Since the 1980s, the Republican Party had expressed commitments not only to restricting abortion but also to reversing expansions of federal power. Such an objection cannot be considered very credible. The one direct regulation on abortion that Congress has passed, the 2003 ban on so-called “partial-birth” abortions, was supported by every pro-life Republican member of Congress despite the fact that it unquestionably expanded federal power in an area of regulation more typically reserved to the states. Other attempts at federal regulation have also been overwhelmingly supported by Republicans. Rose, Safe, Legal and Unavailable, 172.

  57. See Cynthia Gorney, Articles of Faith: A Frontline History of the Abortion Wars (New York: Simon & Schuster, 1998), 351–58; Craig and O’Brien, Abortion and American Politics, 137–47.

  58. Robin Toner, “The G.O.P., Abortion and 2008,” New York Times, May 9, 2007.

  59. See Craig and O’Brien, Abortion and American Politics, 141–47; Graber, “Non-Majoritarian Difficulty,” 56.

  60. See Devins, Shaping Constitutional Values, chapter 6.

  61. The nature of these regulations, and the political background to their enactment, is explained in considerable detail in Raney Aronson-Rath's documentary The Last Abortion Clinic (2005).

  62. Rose, Safe, Legal and Unavailable, 116–17. Six states have adopted some form of all of the major regulations permitted by Casey, but two of these (Wisconsin and South Carolina) have also adopted legislative measures to protect a woman's right to choose, suggesting that a return to the pre-Roe status quo is not the majority legislative preference. Of the remaining three states with maximalist abortion regulations, none had regulations that were nearly as successful as Mississippi's in reducing the number of abortion clinics: as of 2000 Ohio retained thirty-five providers, Pennsylvania retained seventy-three, and Virginia retained forty-six. Rose, Safe, Legal and Unavailable, 91–92.

  63. Compare Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007).

  64. Lemieux and Lovell, “Understanding the Impact and Visibility of Ideological Change,” 18–19.

  65. See http://www.naral.org/choice-action-center/in_your_state/who-decides/. Site last accessed July 21, 2008.

  66. Helena Silverstein, Girls on the Stand: How Courts Fail Pregnant Minors (New York: New York University Press, 2007); Rose, Safe, Legal and Unavailable, chapter 3; Graber, Rethinking Abortion, 68–70; Marshall Medoff, “The Determinants and Impact of State Abortion Restrictions,” American Journal of Economics and Sociology 61(2002): 481–93; Andrew Lehren and John Leland, “Scant Drop Seen in Abortion Rate if Parents Are Told,” The New York Times, March 6, 2006.

  67. See, for example, Craig and O’Brien, Abortion and American Politics, 250, 254; Rose, Safe, Legal and Unavailable, 41–50.

  68. See, for example, Susan Paynter, “If You are Pro-Choice, Pray for Gregoire,” Seattle Post-Intelligencer, January 10, 2004, a discussion of Republican Gubernatorial candidate Dino Rossi's frequent invocations of the Supreme Court when asked about his anti-abortion views in heavily pro-choice Washington state.

  69. See also Scott E. Lemieux and David J. Watkins, “Beyond the ‘Countermajoritarian Difficulty’: Lessons From Contemporary Democratic Theory,” Polity 41 (2009): 30–62.

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  1. The College of Saint Rose,

    Scott E Lemieux

  2. University of Washington,

    George Lovell

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The authors thank Andrew Polsky, Michael McCann, Mark Graber, Jeb Barnes, Eva Bellin, Terri Peretti, Seth Greenfest, Larry Cushnie, Gad Barziali, Katherine Beckett, Steve Herbert, Jamie Mayerfeld, Heather Pool, and the anonymous reviewers for Polity for comments on various drafts of this manuscript.

410 U.S. 113 (1973).

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Lemieux, S., Lovell, G. Legislative Defaults: Interbranch Power Sharing and Abortion Politics. Polity 42, 210–243 (2010). https://doi.org/10.1057/pol.2009.16

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