Backlash to the Future? From Roe to Perry

Abstract

Does a judicial decision that vindicates minority rights inevitably give birth to a special kind of backlash, a more virulent reaction than legislation achieving the same result would produce? We examine this question with respect to Roe v. Wade so often invoked as the paradigmatic case of court-caused backlash-and with the pending marriage cases in mind. As we have shown, conflict over abortion escalated before the Supreme Court ever ruled in Roe, driven by movements struggling over legislative reform and by Republican Party efforts to recruit voters historically aligned with the Democratic Party. these and other features of the abortion conflict suggest that the Court's decision in Roe was not the abortion conflict's sole or even its principal cause. When change through adjudication or legislation threatens the status quo, it can prompt countermobilization and backlash. We do not doubt that adjudication can prompt backlash, but we do doubt that adjudication is distinctively more likely than legislation to prompt backlash or that the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement.