The Day After Roe

The June issue of The Atlantic has (in addition to a really funny send-up of management-consulting-speak) a long piece by Jeffrey Rosen called, "The Day After Roe."  (Unfortunately, the full essay is available only to subscribers.)  In a nutshell, Rosen works through the various scenarios and developments -- political and legal -- that might follow a reversal by the Court of Roe v. Wade.  The working premise for the piece is that Justice Stevens has retired, President Bush has nominated a "fire-breathing social conservative", the Democrats have filibustered, the Republicans have gone "nuclear," and so the Court that hears arguments in the partial-birth-abortion case has five possibly anti-Roe members.  "Because of the intricacies of American federalism," Rosen writes, "and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come, andthe political landscape could be transformed beyond recognition."

Near the end of the piece, Rosen considers the possibility that a post-transformation Democratic Congress passes (and President Clinton signs) a federal law guaranteeing early-term abortions -- notwithstanding the enactment of now-constitutional, more restrictive laws in some states -- but "conservative activists" on the Court strike down the federal law on New Federalism / enumerated-powers grounds.  "This," Rosen notes, "would be a brazen act of judicial activism - no less anti-democratic than Roe itself." 

What does Rosen mean here, exactly?  (Or, what do we mean when we characterize -- as most of us have, at one time or another -- a judicial decision as "anti-democratic"?)  Put aside, for now, the longrunning debate whether "judicial activism" is a particularly helpful term.  What does it mean to say that Roe is "anti-democratic," and in what sense would it be "anti-democratic" for the Court to invalidate a federal law that itself purported to displace states' more restrictive abortion laws? 

We could say, I guess, that both Roe and the hypothesized later case are "anti-democratic" in the sense that both involve the exercise of judicial review and the invalidation by unelected judges of a measure enacted through the legislative process by politically accountable representatives.  We might think that a decision is either anti-democratic, or it's not -- and both of these are.  But, if this is all that "anti-democratic" means, then it's hard to see why the term should be used or regarded as an epithet.

Or, maybe it's better to say that Roe is a lot more anti-democratic because, after all, it invalidated dozens of state laws, while the hypothesized later case only invalidates one.  Or, maybe the later case is rendered less anti-democratic by the fact that the law it invalidates has the purpose and (anti-democratic?) effect of displacing the now-constitutionally-permissible, more restrictive laws enacted in some states? 

I'm inclined to think that Roe was "anti-democratic" not so much because it invalidated the particular products (i.e., statutes) of democratic processes, but because it removed from the sphere of politics an issue about which the Constitution permits reasonable people of good will to disagree, argue, and compromise.  This is not true, it seems to me, of the cases that Rosen would probably identify as the results of "conservative judicial activism", like Lopez or Boerne -- decisions that did not purport to answer definitively disputed normative or policy questions, but only to identify the political communities that are authorized to answer them (or not).