Lawler on Overturning Roe

And His View of "Judicial Restraint"

So we once again are approaching the anniversary, on the 23rd, of Peter Lawler’s untimely death. It was five years ago. I thank CJ for highlighting the good work being done over at Public Discourse to commemorate it.

This time last year I tried to explain, in “The Top Five Lawler Books,” what the man’s intellectual leadership had to do with the very existence of this substack, and why his works have claim to lasting significance.

This year, my commemoration will mainly consist of a coming post that will analyze and explain what he said about the gay-marriage Obergefell decision, and attempt to defend him from the charge that in arguing that that decision should not be reversed, he had betrayed a consistent originalist and social conservative position. Doing that will involve looking at what he said in a chapter of his last book, co-authored with Richard Reinsch II, A Constitution in Full, and considering his overall approach to American constitutional law. It’ll be a tad complicated, in part because I’ll have to both criticize his position, and underline how its subtleties, and perhaps infelicitous presentation, did not make it as starkly mistaken as I believe I’ve heard some conservative mutterers suggest it was. I will be insisting that the correct conservative position is to refuse to support legislative attempts by states re-criminalize gay marriage and thus force SCOTUS to reconsider Obergefell, but that the only correct judicial politics is to keep insisting on the appointment of genuinely originalist justices, who, if Obergefell were to be re-presented, could only rule that the decision rested on totally mistaken premises and must be overturned. Any “originalism” that would rule otherwise in such a situation would be incoherent, would be a betrayal of originalism. Lawler didn’t quite get to that position, or at least, didn’t take the care to articulate it that precisely. Anyhow, that’s for next time.

Today, partly for reasons of obvious timeliness, but also to better understand Lawler’s general approach to constitutional law, I will lay out what Lawler said about the necessity of overturning Roe v. Wade. Knowing that will prepare us to grapple, in the follow-up post, how he dealt with the complicated how-should-a-conservative-think-about-Obergefell-once-it-had-been-decided issue.

On Roe, Lawler’s position is fairly simple—it’s only wrinkle is that he has to explain why it fits with his broader case, which the title of the relevant chapter describes: “Toward a Consistent Ethic of Judicial Restraint.” It is found in this 2007 collection of Lawler essays, Homeless and at Home in America.

My procedure here will be simple also, mainly consisting of quotation. Let’s begin with what Lawler said about the abortion decisions themselves, and then we’ll take a look at his concept of restraint.

The best argument against reversing Roe was one of the arguments the Court gave in Planned Parenthood v. Casey (1992) which the Court claimed to reaffirm the central holding of Roe. Whether or not Roe was rightly decided, the Court argued, a generation of American women have organized their lives around the right to an abortion that the Court had granted them. Although we can admit that Roe itself was a revolutionary act, we now have to add that its reversal has become equally revolutionary. Withdrawing what American believe to be a fundamental right would cause a drastic social upheaval. Although in 1973 Roe may have been unprecedented judicial activism, not reversing it now is an act of judicial restraint. Roe, the Court asserted, is like Brown—as a precedent it’s so fundamental that its reversal would cause us to lose faith in the Court and the Constitution itself.

In thinking through what’s wrong with that argument, we have to consider the way Roe v. Wade is more like Dred Scott than Brown. A generation or even a decade after Brown was decided, very few Americans (and no publicly respectable ones) disagreed with its result. That’s because that anti-segregationist, anti-racist result was in accord with the deepest political and philosophical currents of our tradition.

…But one reason we know that Dred Scott was an act of judicial imperialism is that it decided nothing for good and persuaded very few who were not already persuaded. …Roe, to say the least, has not brought our national controversy over abortion to an end… Lurking, everyone knows, beneath everything said about every judicial nominee…these days is our national division over Roe…

That “everyone knows” line, incidentally, is why the present complaints we are hearing from some Democrat Senators that recently-appointed Justices like Amy Coney Barrett misled them are utterly disingenuous.

Roe settled nothing because its result finds so little resonance in our nation’s political and philosophical currents…

For explanation of that poor fit with our nation’s main line of public philosophy, see what I quoted recently from Hadley Arkes’ fine book Natural Rights and the Right to Choose. Now yes, Lawler did go on to say it would be fruitless to try to figure out if Washington, Jefferson, and Lincoln would be pro-life or pro-choice, and he explicitly sided with Scalia against Arkes (and Harry Jaffa) in wanting an originalism unshaped by natural law,¹ but his remark here about “little resonance” shows he largely agreed with Arkes that the right to choose was at the philosophical level incompatible with the entire natural rights understanding.

Anyhow, returning to Lawler’s flow:

Roe remains controversial because abortion is genuinely and fundamentally controversial for us in a way that no Court decision could resolve. And the only way to keep the Court from becoming overly politicized by that controversy, from continuing to lose the legitimacy that comes from appearing merely to interpret the Constitution, as Scalia writes, is for it to get out of the abortion business.

I.e., when it comes to Roe, the only way of consistent judicial restraint is to overturn it. So notice the most obvious facts: Lawler was pro-life, originalist, and no wimp on these matters. That is that.

Now as for judicial restraint, Matthew Franck taught me a decade-and-a-half ago, that nearly all the phrases about “judicial activism,” and all the debater-points about “who is being a judicial activist now,” are largely useless. That is, we can resolve nothing with these terms. “Judicial activism” was a political catch-phrase that often worked well for conservatives in certain common situations, and it was a natural first rhetorical response to living-constitutionalist hubris in the 1990s, but like “Support the Troops” or “Black Lives Matter,” it is one of those phrases that ultimately obscures more than it enlightens, as became obvious once the living-constitutionalists started deploying it against originalist judges. If “judicial activism” is simply a function of how often the Court is overturning laws or past judicial decisions, then it would follow that a good Court, one loyal to the originalist interpretation would necessarily be overturning more laws and decisions the more disloyal to the Constitution’s text the legislatures of their time were being, or the ones of just before their time had been. Their duty, to the text, would require them to be “activist” if that term is a function of counting-up the numbers of laws or decisions struck down. And in such an era, it would be a bad Supreme Court that did not overturn a great many laws and precedents, even though it could earn shallow praise for “not engaging in judicial activism.”

For those reasons, I was not thrilled when re-reading this chapter to notice how Lawler was attempting to develop a concept of Judicial Restraint. I don’t oppose the exercise, but just think it is an exercise of limited value—give me a genuinely originalist Court, and at least in the long run, I know the serious concerns about judicial unrestraint and activism will fade away. Not that that will stop the sophists who hate originalism from seeking to label any originalist decision they can as “judicial activism,” or as “lack of judicial restraint.” Thus, the debate about restraint v. non-restraint pales in importance, in my view, to that between originalism v. living constitutionalism.

But still, there was something to what Lawler was seeking to articulate here, and it was more to be taken as a plank of conservativism generally than as a hard rule of judicial interpretation:

The conservative position would be easier to defend against the charge that “it’s all political” if it were more consistent. A consistent ethic of judicial restraint would have the Court back off when it comes not only to abortion, religion, and same-sex marriage [ed.—notice that the 2007 meaning of that would be “Court, don’t do an Obergefell!”], but also with respect to property rights, federalism, and affirmative action. On affirmative action, the Court once said Congress is clearly charged with enforcing the 14th Amendment, and surely it is to be given the benefit of the doubt when it comes to the means of enforcement. …And we can also say that the institutions of our welfare state are meddlesome, inefficient, and destined, for harsh demographic reasons alone, to fade away without saying that they are actually unconstitutional. We conservatives would surely not want the New Deal declared unconstitutional by the Court, although we might want Congress to revisit the welfare state’s most basic premises.

I’m pretty sure I disagree with Lawler on the affirmative action cases, and even though I’m totally with him on conservatives not making a call for the judicial overturning of the New Deal part of our platform, Hadley Arkes’s book on Justice Sutherland has given me some doubts about whether a consistently originalist Court could avoid overturning some key judicial doctrines that made the New Deal possible. I emphasize the words “some” and “doubts”—my every inclination here is to side with Lawler. However, we can see there are big issues here which might divide a Consistent Ethic of Judicial Restraint from a Consistent Originalism, and those familiar with Scalia’s opinions and speeches understand that he has struggled with these issues himself.

But here’s the heart of Lawler’s Ethic of Restraint:

Generally speaking, a revolutionary innovation in our nation’s self-understanding, genuine proponents of judicial restraint should say, should not come from the Court. Justice Kennedy was wrong—way wrong—to have said [ed.—in Lawrence v. Texas] that the 14th Amendment gives the Court the power to articulate an innovative and more libertarian view of liberty for each generation of America.

Further on, he develops this to underline his disagreements with libertarian con-law scholars, especially the more unbounded ones like Richard Epstein and Randy Barnett:

Their [social conservatives] genuinely conservative concern is with protecting some conception of human virtue—and democratic deliberation over the virtue required for a decent, free, and responsible people—from judicial activism based on extreme individualism. So a conservative, in this sense, might be all for reversing Roe v. Wade and Justice Kennedy’s elitist and indefinitely expansive liberty or autonomy or libertarian argument in Lawrence v. Texas, while not agreeing that the Constitution today requires a judicially-mandated and rather revolutionary rollback of the welfare/administrative/regulatory state.

Summing up, overturning Roe is not a “a revolutionary innovation in our nation’s self-understanding” but a return to real judicial restraint. In showing how Lawler held that, and why he would warmly welcome the apparent indications from the Dobbs leak that Roe’s day is done, I’ve laid out the aspects of Lawler’s con-law thought that should be easy for most conservatives to embrace, whatever the lingering tensions between the imperatives of Restraint and Originalist Interpretation. Next time, I’ll take us into a more disputable aspect of his con-law thinking, the question of what to do with Obergefell, in ordinary politics, and on the Court, once it was decided against our conservative, originalist, and “restraint-ist” wishes.

1. On the “natural law” issue, but also on the “is there a from-conception-onward right to life in the Constitution” issue, Lawler said this: “Even a very conservative Court dominated by white male Catholics can’t and won’t find the fetus to be a person under the 14th Amendment. …The implicit but discernable doctrine of even the unamended Constitution is that slavery…is unjust. But we, in truth, receive no or at least insufficient guidance from the framers of the 14th Amendment on whether a fetus is a human being, a person. Lacking that guidance, our legislators must make that determination for themselves, and they are perfectly free to broker a compromise… Justice Scalia is right that, under our Constitution, our legislatures are free to pass almost any kind of abortion legislation. That does not, we must emphasize, make him a moral relativist: he clearly does have and is free, as a citizen, to express his natural-law pro-life opinions, but he can’t read them into the Constitution in his position as a member of the Court.”