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   Backlash Whiplash: Is Justice Ginsburg right that Roe v. Wade should make the court cautious about gay marriage?

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5/14/2013 2:10 pm

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Emily Bazelon

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Entered 5/14/2013, Updated 5/14/2013

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Supreme Court Justice Ruth Bader Ginsburg doubled down over the weekend on her ongoing criticism of Roe v. Wade. Ginsburg’s concern is about backlash: She says that by issuing the ruling that legalized abortion across the country in 1973, a group of “unelected old men” stopped the momentum that was building among the states. "That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly," she said at the University of Chicago Law School. "My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change." Ginsburg posed an alternative: “judicial restraint.” As she put it, “The court can put its stamp of approval on the side of change and let that change develop in the political process." This may have implications for the court’s twin cases this term about gay marriage: There will be no majority on the court for a sweeping “50 state solution”—a ruling that would strike down state bans on gay marriage, given the constitution’s promise of equality, and allow same-sex couples to marry everywhere in the country. Justice Anthony Kennedy sent a similar signal in March when he answered a question about whether the court decides too many issues that could be left for the legislature. "I think it's a serious problem,” Kennedy said. “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say."


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