One more and I'll call it a day. In November of last year, there was a memorial service for Barbara K. Olson. Mrs. Olson was the wife of Ted Olson, the former Solicitor General. She died on the plane that hit the Pentagon on September 11, 2001.

The memorial service included a talk I found very interesting about what might have been. One of the most respected US judges of the 20th Century was Henry Friendly. Three years before Roe v. Wade, Friendly was one of three judges to hear a case challenging New York's anti-abortion law. One of the other judges voted for the law, and one against it. Friendly would have been the deciding vote.

Judge Friendly eventually decided to uphold the anti-abortion law, but by then New York had changed the law so the decision was never published. A few years later the Supreme Court decided Roe v. Wade, based on reasoning that Friendly's opinion tore to pieces. If Friendly's decision had been part of the discussion during Roe v. Wade, things may have turned out very differently.

"We would not wish our refusal to declare New York's abortion law unconstitutional as in any way approving or 'legitimating' it. The arguments for repeal are strong; those for substantial modification are stronger still. ... But the decision what to do about abortion is for the elected representatives of the people, not for three, or even nine, appointed judges."

Judge Friendly then predicted the issues that would arise if a court ruled the other way, issues that have plagued the Supreme Court ever since it did just that three years later in Roe v. Wade. For each of his points, I could drop a footnote citing one or more of the dozens of Supreme Court decisions that came after Roe. ...

Judge Friendly ended his draft with his view of the proper role of the federal judiciary. "An undertone of plaintiffs' argument is that legislative reform is hopeless, because of the determined opposition of one of the country's great religious faiths. Experience elsewhere, notably Hawaii's recent repeal of its abortion law, would argue otherwise. But even if plaintiffs' premise were correct, the conclusion would not follow. The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic process, not by utilizing the courts as a way of overcoming the opposition ... clearing the decks, [and] thereby enabling legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920's and 1930's. However we might feel as legislators, we simply cannot find in the vague contours of the Fourteenth Amendment anything to prohibit New York from doing what it has done here."