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Revolution in the Court

In response to:

The Reagan Revolution and the Supreme Court from the July 18, 1991 issue

To the Editors:

Ronald Dworkin, in his review of my book, Order and Law: Arguing the Reagan Revolution [NYR], July 18], zeros in on just the points where my arguments are most vulnerable.

On abortion, my concession that some regulations of abortion—“the most Draconian and bloodthirsty,” to repeat the terms I used in my argument to the Supreme Court in the Webster case—cannot pass constitutional muster, even though they serve a purpose I deem constitutionally permissible (though not required): the protection of the fetus.

On affirmative action, my assertion that race-conscious preferences are constitutionally permissible to remedy definite, identified discrimination, but not—as controlling opinions in the Supreme Court have on several occasions (including the Bakke case) put it—to respond to general, diffuse “societal discrimination.”

Dworkin argues that these softenings of a hard-edged doctrinal rigor deprive my position of a principled consistency, revealing it as a political compromise. He might have gone on to say that my reluctance to “go the whole way” on these counts is a kind of behavioral proof that really only one—the “liberal”—horn of these dilemmas is acceptable. These are important points of attack, as is shown by the fact that, on affirmative action at least, my position has been criticized just as sharply from the other side.1 I regret that I succeeded so little in indicating the nature of my solution that Dworkin feels I scarcely even addressed these difficulties.

The answer to these questions depends neither on the method of original intent nor on a method of deduction from a single body of coherent axioms2 but on the more untidy techniques of the common law, which proceed by precedent and analogy to adjust sharply competing values, always with close attention to the facts of the particular dispute.3 Applied to affirmative action and abortion, this method points to the middle ways Dworkin finds unprincipled and therefore untenable. Recourse to race-conscious remedies, but only where there has been identifiable discrimination, recognizes the traditionally greater power of courts to impose remedies on those who have committed specific unjust acts: the wrongdoer may not complain and any disadvantaged white competitor may not complain since his position is demonstrably what it would have been had the particular injustice not been committed.

On abortion I argued that the materials and intuitions of the law allow—perhaps compel—a distinction between the distant imposition that comes from the regulation of doctors and clinics and the direct and brutal imposition involved in prosecuting a woman for swallowing an abortifacient pill. That was the point of my answer to Justice O’Connor (quoted in the book) in the colloquy from the Webster case. Justice O’Connor asked if the right of privacy extended to abortions which are compelled as part of a policy of population control. I responded that this would offend the due process clause as it would involve a brutal laying of hands on the person of the woman. And just as surely, common law and common sense allow a distinction—one of constitutional dimensions—between abortion for reasons of convenience or as a method of birth control and the defensive recourse to abortion where the life or health of the mother are threatened. To keep perspective, it is important to recall that, under Roe v. Wade, abortion regulations of the kind that obtain in almost every developed country would be impermissible. Dworkin argues that either all of these regimes must fail under principles of liberal decency, or, if concern for the fetus is to be credited, (virtually) all abortions must be banned. That is unreasonable, and my avoiding these extremes is neither immoral nor merely political.

Finally, on a minor point, I regret that Dworkin seems to have relied on the disent’s characterization of the facts in the Wards Cove case. It was established that the percentage of minority workers employed in the better paid, more pleasant non-factory jobs in the salmon cannery camps matched the percentage of minority persons present in the relevant pools of potentially qualified workers. Thus, even on the most expansive reading of Griggs, the plaintiffs had not even made out a prima facie case. Indeed those of us who litigated the case thought it so clear on this point that it did not seem a particularly good vehicle for the further issue addressed by Justice White. The disparity in the racial composition of the two groups arose because the less well paid factory workers were overwhelmingly of Philippine extraction. And the reason for that was that the canneries relied on a union hiring hall in Seattle to supply those workers and that union’s membership was similarly overwhelmingly Philippine. In light of these facts, Justice Stevens’ phrase comparing the canneries to a “plantation economy”—taken up by Dworkin—though certainly vivid writing, is fair neither to the Court nor to the truth.

Charles Fried
Carter Professor of General Jurisprudence
Harvard Law School
Cambridge, Massachusetts

Ronald Dworkin replies:

In his characteristically clear and good-humored letter, Charles Fried misrepresents my criticism of his book. I did not accuse him of “softening the doctrinal edges” of his constitutional principles by also recognizing other values that, in appropriate cases, outweigh those principles. I accused him of a kind of incoherence, which is a very different matter.

Of course constitutional principles often conflict with other important values. Free speech may conflict, for example, with national security or with people’s rights not to have their reputations ruined by false reports, and judges must therefore decide whether and how far free speech may constitutionally be limited by military censorship or by libel laws. The common law tradition insists, however, that judges must respect the law’s integrity in making those decisions; they must not recognize some particular principle as important and weighty in one case and then wholly ignore it or treat it as inconsequential in another, refusing to apply it even though no other, competing principle of comparable power is involved. That kind of incoherence is hypocrisy; someone who is unwilling to apply a principle consistently does not really accept it, and so has no genuine justification even for those decisions in which he claims to be following it. He cites the principle then only to disguise the fact that his decision has some other, less creditable, basis.

In his book, Fried claimed that any state has the power to treat a fetus as a person with a right to live, and he cited that principle as justification for his view that a state has the right to prohibit even early abortions in hospitals and clinics. But he also claimed, a few pages later, that no state has the right to forbid women to buy or use abortion-inducing pills or other home-abortion devices, or to forbid druggists or others to supply such pills within the state. These two claims are incoherent unless Fried can explain why, though in his view a state has the right to treat a fetus as a person, it does not have the right to do whatever it can to prevent a pregnant woman from killing that person. In his letter he says only, by way of defense, that states may not use “Draconian and bloodthirsty” means to prevent abortion, and that punishing a woman for a home abortion would be a “direct and brutal imposition.” But prohibiting the sale or use of pills is no more bloodthirsty, and no more brutal, than prohibiting abortion in hospitals. States plainly have the right to prohibit the sale or use of drugs for a variety of reasons. They certainly have the right to prohibit the sale of poison; no one thinks that such laws are unconstitutional because they treat would-be murderers in a “Draconian and bloodthirsty” way. So some of Fried’s views make sense only if states do not have the right to treat a fetus as a person; they make sense only if the principle he otherwise embraces is false.

I said that his views about affirmative action and race were incoherent in a similar way, because he relied on the claim that people have a constitutional right not to be disadvantaged in virtue of their race in order to condemn most affirmative action plans, but nevertheless said that affirmative action programs are permissible when there has been specific and identifiable discrimination in the past against the group the program seeks to help. I said that this exception cannot be defended in principle, because even when a community has discriminated against black construction firms in the past, for example, reserving a quota of contracts for black firms now will injure white contractors who neither participated in nor benefited by that past discrimination. In his letter Fried hopes to meet that argument with the assertion that “any disadvantaged white competitor may not complain since his position is demonstrably what it would have been had the particular injustice not been committed.”

That extraordinary claim assumes that there would now be many thriving and competitive black construction firms, in all the communities that discriminated against black firms in the past, if that discrimination had not occurred. Since Fried concedes that structural (or “societal”) discrimination has prevented black firms developing even in communities in which there was no specific discrimination against such firms, he cannot make that assumption. But even if we accept the assumption, it hardly follows that any white contractor who loses now, because a city that formerly discriminated has adopted a black quota, is in no worse a position than he would have been if the city had not discriminated before. We have no way of tracing the consequences of imaginary historical changes in that detail; we have no conceivable reason to think that all the white firms who lose out under affirmative action plans now would anyway have been underbid by a black firm had there been no discrimination in the past. On the contrary, that seems wildly improbable. Fried claims, however, not only that they would all have been underbid, but that this is demonstrably so, which is not just wrong but bizarre.

Of course my point in these arguments was not that Fried should have applied his conservative principles about abortion and affirmative action more rigorously. Indeed, I argued that these principles were themselves indefensible, for reasons Fried does not mention in his letter. My point was rather that he and others who defend the Supreme Court’s recent decisions do not actually believe the principles they cite. That is a matter for some concern. In spite of Fried’s sanguine claim, in a recent op-ed article in The New York Times, that the conservative justices of the Supreme Court are ideologically different one from another, the Court these conservative justices now dominate is plainly in a revolutionary mood, apparently aiming, with little respect for precedent, at a wholesale reconstruction of the constitutional law of past decades. (Though it is of course dangerous to predict how Judge Thomas, who has been nominated to succeed Justice Marshall, would decide particular cases if his nomination is confirmed, his past statements suggest very conservative views.) It is therefore important to see whether the revolutionary enterprise can be defended as principled, even though we may find the principles it embodies unattractive, or whether it is, as several critics have suggested, just an attempt to advance rightwing political goals in a not-too-extreme, and therefore politically more acceptable, form. I hoped to find in Fried some support for the former, more honorable and encouraging, view, but I found only a depressing confirmation of the latter one.

I should make two further points. First, I took my description of the facts in the Wards Cove case from both the majority and minority opinions, and also from Fried’s own description.* Fried himself quoted Justice Stevens’s remark about a “plantation economy,” though he now finds the remark unfair, and he added that the situation at the cannery was “unattractive” and presented “nasty details,” including the fact that the gutting machine was called the “iron chink.”

Second, Fried summarizes my own views about abortion in what I fear is a misleading way. He suggests, both in his book and his letter, that I believe that the abortion controversy must turn only on the question whether a fetus is a person. In an earlier NYR article and in a recent lecture, both of which are cited in my review, I said that the Supreme Court’s unchallengeable decision that a fetus is not a constitutional person is only the beginning of the legal argument about whether states may constitutionally ban abortion. It is a widely held view, for example, that a political community may properly prohibit abortion, if it so decides, because it is entitled to enforce the principle that human life in any form is sacred, whether or not it is yet embodied in a person. Many of the countries Fried refers to whose restrictions on abortion would not be permitted under Roe v. Wade, justify those restrictions on that ground, which they carefully distinguish from the thesis that a fetus is a person, a thesis many of them reject.

The real, and complex, question at stake in the abortion controversy in the United States is whether our constitutional system permits a state to adopt the majority’s interpretation of the sanctity-of-life principle as a basis for criminal prosecutions. My own view is that it does not. In any case, once we understand that the fundamental question is not about the personhood of a fetus but about the enforcement of convictions about the sanctity of life, then we can understand more easily why the American law of abortion may well be different from that of other countries whose constitutional values do not give so prominent a place to freedom of religion, personal privacy, moral independence, and freedom of conscience. The American Constitution protects individual liberty and dignity in many ways in which the laws of other countries do not, and we are generally proud rather than suspicious of the differences.

  1. 1

    See, e.g., the thoughtful and sympathetic review by Judge Laurence Silberman, Harvard Law Bulletin, June, 1991, pp. 14–15.

  2. 2

    See Fried, “The Artificial Reason of the Law or What Lawyers Know,” 60 Texas L. Rev. 35 (1980).

  3. 3

    This was anathema to some of my more rigid colleagues on the right. See, e.g., the review of Order and Law by McDowell, The Washington Times, April 15, 1991: “Mr. Fried looked upon the powers of his office and the politics of the Reagan Revolution only through the confined vision of the traditional common lawyer.”

  4. *

    The case was miscited in my article. The correct citation is Wards Cove Packing Co. v. Atonio, 490 US 642.

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