When the Court Gets Ahead of the Political Process


Judge Ruth Bader Ginsburg, who was nominated last week to fill the Supreme Court seat of Justice Byron White, has confronted politically explosive issues both on and off the bench. In response to pressure from abortion-rights advocates, she was reported Friday to be revising the text of a speech originally given March 9 at the New York University School of Law. Here is a partial text of the speech as originally delivered.

Judges play an interdependent part in our democracy. They do not alone shape legal doctrine, but . . . they participate in a dialogue with other organs of government, and with the people as well. ''Judges do and must legislate,'' Justice [Oliver Wendell] Holmes recognized without hesitation. ''But they can do so,'' he cautioned. ''only interstitially;'' ''they are confined from molar to molecular motions.''

Measured motions seem to me right, in the main, for constitutional as well as common-law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.

The most prominent example in recent decades is Roe v. Wade. To illustrate my point, I [will] contrast that breathtaking 1973 decision with the court's more cautious dispositions, contemporaneously with Roe, in cases involving explicitly sex-based classifications. . . .

The 7-2 judgment in Roe v. Wade declared ''violative of the Due Process Clause of the Fourteenth Amendment'' a Texas criminal abortion statue that ''[excepted] from criminality only a life-saving procedure on behalf of the [pregnant woman].''

Suppose the court had stopped there, thus declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force? Would there have been the 20-year controversy we have witnessed, reflected most recently in the ,, Supreme Court's splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, I believe, . . . might have served to reduce rather than to fuel controversy.

In the 1992 Planned Parenthood decision, the three controlling justices accepted as constitutional several restrictions on access to abortion that would not have survived strict adherence to Roe. Those justices acknowledge, however, the tight tie between a woman's ''ability to control [her] reproductive [life]'' and her ''ability . . . to participate equally in the economic and social life of the nation.''

The idea of the woman in control of her destiny and her place in society was less prominent in the Roe decision itself, which coupled with the rights of the pregnant woman the free exercise of her physician's medical judgment. The Roe decision might have been less of a storm center had it both homed in more precisely on the women's-equality dimension of the issue and, corres- pondingly, attempted nothing more bold at that time than the mode of decision-making the court employed in the 1970s gender-classification cases.

In fact, the very term Roe was decided, the Supreme Court had on its calendar a case that could have served as a bridge, linking reproductive choice to disadvantageous treatment of women on the basis of their sex. The case was Struck v. Secretary of Defense; it involved a captain the Air Force sought to discharge in Vietnam War days. Perhaps it is indulgence in wishful thinking, but the Struck case, I believe, would have proved extraordinarily educational for the court and had large potential for advancing public understanding.

Capt. Susan Struck was a career officer. According to her commanding officer, her performance as a manager and nurse was exemplary. Captain Struck had avoided the drugs and alcohol that hooked many service members in the late 1960s and early 1970s, but she did become pregnant while stationed in Vietnam. She undertook to use, and in fact used, only her accumulated leave time for childbirth. She declared her intention to place, and in fact placed, her child for adoption immediately after birth. Her religious belief precluded recourse to abortion.

Two features of Captain Struck's case are particularly noteworthy. First, the rule she challenged was unequivocal and typical of the time. It provided: ''A woman officer will be discharged from the service with the least practicable delay when a determination is made by a medical officer that she is pregnant.'' To cover any oversight, the Air Force had a backup rule: ''The commission of any woman officer will be terminated with the least practicable delay when it is established that she . . . [has] given birth to a living child while in a commissioned-officer status.''

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