Belated self-congratulations; and an example of how "judicial conservatism" differs from "political conservatism"

In February of 2004, I posted (with my usual windy length) about the Fifth Circuit's then-pending consideration of an appeal brought by Ms. Norma McCorvey — perhaps the most well-known plaintiff in the last half century, albeit under the pseudonym "Jane Roe" in Roe v. Wade. Ms. McCorvey, having had a profound change in her personal convictions about abortion, sought to reopen her original case in hopes of reversing the Supreme Court's ruling. My liberal friends over at Burnt Orange Report were terribly concerned that she might win, based on what I thought was a misreading of the fact that the Fifth Circuit had scheduled oral argument on her appeal from the district court's dismissal of her case. They were particularly concerned — unjustifiably so, I thought — that a politically conservative judge like the Hon. Edith H. Jones of the Fifth Circuit might take this appeal as an opportunity to try to reverse (or at least undercut) the Supreme Court's opinion in Roe and its progeny.

Prof. Eugene Volokh's "Where are they now?" post today — inquiring about the later life of famous plaintiffs in constitutional cases — prompted me to follow up on Ms. McCorvey's appeal. And in doing so, I found that I'd missed it when the Fifth Circuit issued its ruling in August 2004 — there was very, very little coverage of the decision in the mainstream media, and only about 25 total "hits" appear on Lexis/Nexis for the ruling.  And I also missed it in February 2005 when the U.S. Supreme Court denied Ms. McCorvey's petition for a writ of certiorari, thereby leaving the Fifth Circuit's decision in place.  McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied, 125 S. Ct. 1387 (2005). But I'll congratulate myself belatedly on having correctly predicted that the Fifth Circuit would (i) affirm the district court's dismissal of Ms. McCorvey's case, (ii) do so without oral argument, and (iii) do so in a unanimous panel opinion written by the very judge about whom my liberal friends were so concerned, Edith Jones.

The panel opinion relied on slightly different (but equally valid) grounds than those cited by the district judge — mootness (based on the challenged Texas statutes having been repealed) rather than simple untimeliness. And in fact, by basing its decision on mootness grounds, the Fifth Circuit panel avoided the arguable need to consider whether Ms. McCorvey's thirty-year delay in bringing her attempt to re-open her case was "unreasonable" given the facts and circumstances of her case, which in turn arguably would have required both the district court and the Fifth Circuit to perform "a substantive critique of Ms. McCorvey's claims." Judge Jones' opinion for the unanimous three-judge panel, then, is a model example of a key tenet of "judicial conservatism" — deciding an appeal on the narrowest possible grounds, and thereby avoiding unnecessary holdings.

As it happens, however, Judge Jones did take the opportunity to write a separate opinion — concurring with the result of her own opinion for the unanimous panel, but speaking only for herself and not for the other two judges (or for the Fifth Circuit as an institution) — which contains a stinging critique of the factual assumptions that the Supreme Court made in its Roe opinion. Judge Jones' name has sometimes been mentioned as a possible Supreme Court nominee (although less so in the recent past than previously). Were that to happen, she'd certainly be grilled by the pro-abortion forces in the Senate on this concurring opinion, just as (hopefully about-to-be-confirmed) Eleventh Circuit nominee Bill Pryor was grilled after labeling Roe "an abomination."

I haven't always been among Judge Jones' biggest fans, and my own views on abortion as a political and ethical matter, and on Roe v. Wade and its progeny as a matter of constitutional law, are fairly muddled and perhaps somewhat inconsistent. (It's not a topic I blog on much for that reason, and I'm not trying to encourage extended debate on the merits of the abortion issue in my comments, either.) But — like Judge Pryor's vigorous enforcement of the Supreme Court's Roe precedent when he was a state attorney general, despite his profound disagreement with that decision on both personal and legal grounds — this particular appeal, and Judge Jones' participation in it, is a fairly striking example of how a judicial conservative ought to behave when sitting on any of the Courts of Appeals, which lack the fundamental power to overrule any Supreme Court precedent. She could have grand-standed; instead, she cancelled oral argument, putting the case into a lower public profile. She voiced — in an appropriate manner — her legal reservations about the Roe precedent, but she did not permit those reservations to skew the results of the appeal.

I don't deny that there are politically conservative judges who may be judicial activists. But I'm an opponent of judicial activism — regardless of the politics that motivate it or the direction it skews. And to those who insist that all politically conservative judges must necessarily become judicial activists for conservative causes, this result is a pretty strong rebuttal. I've observed, and could probably readily also find examples of, judges whom I know to be politically liberal who've nevertheless adhered to their judicial conservativism, and have dutifully reached results thereunder with which they personally disagree. "I might well support the opposite result," judicial conservatives (of either liberal or conservative politics) will say, "were I a member of the state or federal legislatures, debating and making public policy on this issue." But a judicial conservative recognizes that he or she isn't a legislator. And he or she always remains aware of the respective level and functions of the court on which he or she sits: if a United States District Judge, for example, that role does not include overruling (or circumventing) precedent from the Circuit and Supreme Courts, or if a Circuit Judge, precedent from the Supreme Court.