Here are a couple of thoughts from the two "hot topics" panels in which I participated at the AALS over the last couple of days:
1) On my reproductive rights panel, Yale Law Prof Jack Balkin made the claim that the Republican Party---which he distinguished from the social conservatives who are on part of the Republican coalition---has not, over the last generation, sought the reversal of Roe v. Wade, but has instead sought to chip away at the decision while leaving a core right protected. I objected that this has been the effect of some wobbly Supreme Court Justices, but that in fact during this period, the Party has sought to overturn Roe, even though I agreed with Jack's underlying premise that overruling Roe might well be bad for the Republican Party as an institution, because that would de-energize religious conservatives and energize liberals on the issue. Nonetheless, I said that but for the flukes of who controlled the Senate and the vagaries of judicial appointments, the Republicans would have succeeded in overturning Roe, even if this was not in the Republican Party's interest. Balkin then reiterated that he was distinguishing between the Republican Party and its interest groups (which seemed to me not to address my objection, as the Party only does what the balance of forces among its interest groups determines), and claimed that the failure to overturn Roe despite so many Republican appointments tells us about the Party's revealed preferences. To which I say, no way. President Huckabee, indeed even President Giuliani, would name a Justice who would be the fifth vote to overturn Roe. But I'm hoping we don't get to test this proposition.
2) On my Second Amendment panel today, there was some discussion about how a decision upholding or rejecting the individual right view would play politically. We all pretty much agreed that a victory for the District of Columbia could be costly to the Democratic Presidential nominee, because it would activate the strongly Republican leaning gun rights groups. I said that I also thought a victory for Heller (the plaintiff) would help the Republicans, especially if it were 5-4, simply by making the issue salient and by emphasizing how closely divided the Court is, because the gun rights folks care more about this issue than do the gun control folks. Harvard Law Prof Mark Tushnet (the moderator) and GW Law Prof Bob Cottrol (from the audience) thought that a victory for Heller would be good for Democratic politicians and gun control advocates, who could then claim credibly that the gun control measures they favor are not in fact the first step on a slippery slope to abolition. That's an intriguing idea but I'm not sure. It strikes me that the win-by-losing strategy is always risky and unpredictable.
Posted by Mike Dorf