We have heard a lot about abortion during the Kavanaugh spectacle. Why? Because people are worried the Supreme Court will overturn Roe v. Wade, the 1973 decision that guarantees a woman’s right to end a pregnancy according to Harry Blackmun’s schedule. If you follow the Court’s guidelines, Planned Parenthood will help you end your pregnancy. If you do not follow the Court’s guidelines – we don’t actually know what happens then, but it’s supposed to be bad.

We have to ask, why does the Supreme Court concern itself with laws that govern procreation? You could say it does not seek out cases to decide: people come to the Court to settle difficult questions. Yet the Court can decline any case it likes, or hear any case it likes. Why did it become involved with family law?

We fight over unsettled questions, not settled ones.

The answer to that question has to do with the women’s movement. Women believed that if they could not control when they have children, they suffer an extraordinary constraint on their freedom, one foreign to men. They needed the option of abortion, even if in many cases, it was not an attractive one. At the time, the Supreme Court appeared to be the only legal body that would grant the option, or right, throughout the land.

People who believe in ostensible reproductive rights have fought hard to keep these rights in place. People who believe abortion is immoral have fought hard to limit the practice by whatever means they can. They have not made reversal of Roe v. Wade their primary aim, but for both sides, the decision is a symbol of the fight.

People who believe abortion is immoral have fought hard to limit the practice. They have not made reversal of Roe v. Wade their primary aim, but the decision is a symbol of the fight.

The decision stands. Nominees to the Court call it ‘settled law’. One wants to ask, however, ‘why is it settled?’ Is it settled because you have to say that to have your nomination approved? Because forty-five years is a long time? Because we just don’t overturn precedents here at the Court? Because it’s the right decision, constitutionally and in practice? Because the consequences of overturning it would be too grave?

Perhaps we’re not sure why Roe v. Wade is settled law, but we don’t want to argue the matter, either. Settled law means, “Let’s move on, we have other problems to solve.” That’s certainly a comfortable position if you believe fetal tissue is inanimate. It is not a comfortable position at all if you believe a growing embryo is a form of life. So the issue arises each time a new nominee comes before the Senate Judiciary Committee, even though every nominee claims the matter is settled.

Why would family law ever become the province of the Supreme Court?

You could say women’s rights organizations just want assurances. If they believed those assurances, however, I wonder if they would fight as hard as they do to prevent conservative jurists from sitting on the Court. Every organization has limited resources. Some organizations appear quite worried about Roe v. Wade, in light of wide agreement the Court should not overturn it.

Yet I’ll ask the question that started this train of thought: why would family law ever become the province of the Supreme Court? Is it only because advocates for reproductive rights persuaded five justices in 1973 to agree with them about their position? Has the status of Roe v. Wade been a matter of politics, not law, ever since?

If you want to settle something, you have to settle it in a way people can live with the outcome. Otherwise, it’s not a settlement. You just have more war.

We use votes and other imperfect methods, not legal opinions, to decide political questions. Do advocates for Roe v. Wade push their position so hard, every time a justice dies or retires, because they tied up a decision in their favor with five votes forty-five years ago? If you settle a political question that way, five votes the other way, two generations later, could have just as much effect. If you want to settle something, you have to settle it in a way people can live with the outcome. Otherwise, it’s not a settlement. You just have more war.

Of course, the question of reproductive rights comprehends both politics and law. Most difficult public questions do. We have several ways to resolve these issues. By tradition, the Supreme Court tries to limit itself to constitutional law, not political questions or family law. When it involves itself with political questions – as it did when it decided Bush v. Gore in Bush’s favor – it does serious harm to its reputation. You cannot appoint a politician to the presidency, or settle a matter of family law, without people asking what you think you’re doing.

We should let the justices correct their mistakes, if they can.

After all, the Supreme Court is not a place where we bring all of our irresolvable questions. The Constitution does not give it that role, John Marshall did not give it that role, nor has anything in our legal tradition since John Marshall turned that role over to our nine Solomons. The justices do have discretion over the kinds of cases they hear, and they exercise the discretion with care. Nevertheless, they make mistakes. We should let the justices correct their mistakes, if they can.

I won’t say here that Roe v. Wade is one of them. I will say the decision has an outsize role in the processes we use to decide who sits on the Court. That is an indication, on its own, that the law in that area is not so settled after all. We fight over the questions that are not settled, not those that are.

We do not, after all, want them to be super-politicians in robes.

If Harry Blackmun could not resolve this question satisfactorily in 1973, do we want to live with his opinion indefinitely? We have already lived with a poorly constructed legal opinion for a long time. Perhaps we fear the consequences of our efforts to improve his reasoning, as it might encourage both sides to wheel their artillery up to the front lines for another round.

What if we found a compromise the combatants could accept? That result might reduce partisan wars on other matters. It would also return our Supreme Court nominees to cerebral and discretionary skills they are trained to exercise. We do not, after all, want them to be super-politicians in robes. Yet we appear to have lost our confidence that efforts to compromise questions like reproductive rights can ever result in even partial agreement. At that point, partners accept separation as the best settlement.