On Freakonomics, Roe v. Wade, and John Roberts, Jr.

Controversy sells. Freakonomics: A Rogue Economist Explores the Hidden Side of Everything, a collaboration between economist Steven D. Levitt and journalist Sthephen J. Dubner, is a good example of this maxim. Levitt and Dubner tackle controversial subjects in an unconventional fashion, and now their book is a New York Times Bestseller. Although I do not agree with many of their conclusions, I use Freakonomics in both my graduate and undergraduate courses. Why? The most common critique I get from my graduate students (these are MBA students, not Ph.D. econ candidates!) is, “This is not economics, this is sociology!” Freakonomics allows me to show that economics is much more than just Supply-Demand and Equilibrium!  Of course, the controversial nature of the book allows also for interesting discussions.

One source of controversy in the book is the assertion that the decrease in crime in the 1990s was the result of Roe v. Wade. After a short but (in my opinion) good historical background (students learn about Norma McCorvey a.k.a. Jane Roe), they present their hypothesis. According to the authors, you are more likely to be a criminal if you were born in an adverse environment. Furthermore, women unable to get abortions before Roe v. Wade were “models of adversity.” Thus, the children of these women were more likely than average to become future criminals. However, as a result of Roe v. Wade, these births were avoided and the crime rate decreased!  “It wasn’t gun control or a strong economy or new police strategies that finally blunted the American crime wave. It was, among other factors, the reality that the pool of potential criminals had dramatically shrunk” (Levitt and Dubner, p. 6).

As you might expect, there are other explanations (I will recommend Akerlof, Yellen, and Katz, “An Analysis of Out-of-Wedlock Childbearing in the United States,” Quarterly Journal of Economics 111.2, 1996: 277-317).  Thus, the topic remains controversial.

Today, Roe v. Wade is the setting of an important battle between the Pro-Choice Camp and its nemesis the Pro-Life camp. With Sandra Day O’Connor stepping down from the Supreme Court (and Chief Rehnquist following soon), this battle might be reaching a turning point, with the potential overturning of Roe v. Wade. Do you think that John Roberts Jr. won’t be part of that effort?

When introducing him, President Bush told the nation that Roberts “has devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment and personal decency.” This is plain English as far as form goes. As for content, however, we still need a translation!  We need to know if Judge Roberts is likely to push for the overturn of Roe v. Wade.

What are Roberts’ credentials? A Harvard Law School graduate, Roberts clerked in 1980 and 1981 for Justice William Rehnquist; he was part of the Reagan Administration (as Special Assistant to Attorney General William French Smith and later as Associate White House Counsel); he has argued 39 cases before the Supreme Court, and Sandra Day O’Connor thinks he is “fabulous choice.”  Finally, in the contested 2000 Presidential Elections, he was part of a team of Republican lawyers assisting the Bush-Cheney campaign. In other words, he is not a liberal — but that should neither be a surprise nor, by itself, a negative factor in his confirmation bid.

However, what about his character, his interpretation of the law? Roberts himself said that he doesn’t have an “overarching uniform philosophy.” Again, I need a translation! I would like to have something tangible to understand about his judicial philosophy. His career as a judge is not that long, and thus, there is no extensive case history. However, seek and you shall find! Recent allegations put Roberts as a member of the Federalist Society, a 1980s group of conservative judges and lawyers joining forces to fight the growing “liberalism” on the bench! Although the White House story is that Roberts has no recollection of belonging to the conservative group,” I think that the words of Sen. John Cornyn (R-Texas) are revealing (as well as more refreshingly honest than the White House’s): “Obviously it wasn’t central in his life. But it’s not like being a member of the Communist Party.”

While the mêlée about his alleged membership continues, we should focus on facts (I don’t blame Roberts for not recalling if he was a member — I mean, who wants to remember the 1980s).  In his testimony before the Senate in 2003, when he was nominated for the U.S. Circuit Courts of Appeals, he told senators the following: “I do not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document.” As you remember, Senators were not singing, “happy, happy, joy, joy!” However, he did recognize the obligation to follow the precedents of the Supreme Court. His words: “Roe v. Wade is the settled law of the land.” This should be a good indicator of his judicial philosophy.  However, that was for the Court of Appeals that, although powerful, is not the Supreme Court. As a new member of the Supreme Court, he can actually change the law of the land! Would he?  As a co-author of a brief before the same court he will be joining if confirmed (see Rust v. Sullivan), he wrote the following: “We continue to believe that Roe v. Wade was wrongly decided and should be overruled.” Wow!

Roberts is said to be “one of President Bush’s noncontroversial picks,” a “low-key” candidate who “attracted support from both ends of the ideological spectrum” when he was nominated to the appellate bench (and probably will again); whereas Levitt and Dubner’s claim about abortion and the crime rate generates controversy — which (fortunately for them) drives book sales but would surely drive them out of the pale of bipartisan consensus were they politicians or nominees for the Supreme Court. That says a lot about the current political climate, which is freakier than Freakonomics.

Carlos F. Liard-Muriente is Assistant Professor
of Economics at Western New England College. His forthcoming papers include “Globalization and Inequality: Some Remarks” in Equal Opportunities International (forthcoming, 2005) and (with Michael Meeropol) “A Critique of ‘Rubinism’ — Did Reduced Budget Deficits and the Brief Experiences with Surpluses Cause the Economic Successes of the 1990s?” in Proceedings of the 11th Presidential Conference “William Jefferson Clinton: The ‘New Democrat’ from Hope” at Hofstra University, New York (forthcoming, 2005).