Abortion was, for Bobby, an essentially contested concept because the opposing sides are unlikely to reach agreement, given that they don't "share the same paradigm of privacy and liberty." Twenty years ago, Bobby called abortion a constitutional crisis, noting that Roe had already been whittled away by state legislatures responding to the Supreme Court's promise of lessened scrutiny of abortion restrictions. Later, he would write: "American politics and culture have suffered greatly from the abortion wars." It's as true now as ever.
But abortion was not the only contested issue that fascinated Bobby. He would have been holding his breath, as many of us were, when the Supreme Court decided the health care case last term, and he would have loved even more watching the Court wrestle with the big issues on the docket this term -- the Texas affirmative action case, the challenge to DOMA and California's Proposition 8, and the Voting Rights Act challenge, all of which raise questions that were of consuming interest to Bobby. Partly because he was such a child of the '60s, and partly because these cases raise fundamental questions about who we are as Americans, this Term would have mesmerized him.
Late in his life, Bobby started exploring how courts in other countries were addressing similar issues. One development we discussed was the way courts were using the right to human dignity to resolve controversial constitutional questions: in 2010 alone, the year he died, the Mexican Supreme Court protected as an incident of human dignity the right of same-sex couples to adopt, the German Constitutional Court ruled that social security benefits must be "in line with human dignity," and the Namibian Supreme Court read free speech rights in light of human dignity, just to give a few examples.
Bobby believed that constitutional decisions should be made on the basis of deliberation and not of a pre-commitment to some exo-constitutional dedicated values. But he was intrigued, as I have been, by the possibility that courts could give human dignity enough concrete meaning to bring together contending sides of an essentially contested controversy. I've examined this in Dignity Rights: Courts, Constitutions, and the Worth of the Human Person, and in subsequent posts, I'll write about how human dignity has become embedded in global constitutional jurisprudence. For now, I just wonder how Bobby would have responded to the notion that courts are guided by the principle of human dignity as they decide cases about same sex marriage, voting rights, affirmative action, and even abortion.