*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by Reva Siegel, ACS Board Member and Nicholas deB. Katzenbach Professor of Law, Yale Law School
An aroused public can shape judicial appointments, and shape law.
Only a few constitutional cases provoke sustained public engagement. But in those few cases where the public is fiercely engaged, judges often respond. Justice Kennedy expressly acknowledged public deliberation about same-sex marriage in Windsor and Obergefell. Justice Scalia, who denounced the living Constitution, wrote an originalist opinion in Heller responding to the claims of living Americans opposed to gun control.
Mobilization can influence not only the outcome of cases, but even their reasoning. Opponents of health care spread fear of death panels and government-mandated consumption of broccoli, and, in the process, transformed constitutional arguments against the law from “off the wall” to “on the wall.” In Sebelius, the Justices addressed Congress’s power to enact the health care law in opinions that repeatedly discussed vegetables and the importance of protecting individual liberties.
* * *
Looking back over a half century of abortion conflict, we can see this dynamic in action and imagine new forms it might take.
For decades, supporters of the abortion right sought protection for women’s health, liberty and equality, while opponents sought protection for unborn life. The Court balanced these claims in Roe’s trimester framework and in Casey’s undue burden standard.