Legislative Defaults: Interbranch Power Sharing and Abortion Politics

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.