Movement Litigation and Unilateral Disarmament: Abortion and the Right to Die

Detractors have long criticized the use of courts to achieve social change because judicial victories tend to provoke counterproductive political backlashes. Backlash arguments typically assert or imply that if movement litigators had relied on democratic rather than judicial politics, their policy victories would have been better insulated from opposition. We argue that these accounts wrongly assume that the unilateral decision by a group of movement advocates to eschew litigation will lead to a reduced role for courts in resolving the relevant policy and political conflicts. To the contrary, such decisions will often result in a policy field with judges every bit as active, but with the legal challenges initiated and framed by the advocates' opponents. We document this claim and explore its implications for constitutional politics via a counterfactual thought experiment rooted in historical case studies of litigation involving abortion and the right to die.