SANFORD LEVINSON
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Those, however, are special circumstances. In the normal
course of events Ely offers majoritarian politics alone as the legiti–
mator of public policy. Ely can find no defense for the Court's post–
Warren ventures into judicial activism, the most prominent being
the 1973 abortion case
Roe versus Wade,
which invalidated restrictive
abortion laws throughout the United States. Ely finds no good
reason for treating the class of pregnant women seeking abortions as
different from any other ordinary group of political claimants.
Women are not a minority, except in a tendentiously metaphorical
sense; moreover, as Justice Blackmun himself admitted in
Roe,
at
least a third of the states had recently liberalized their abortion laws,
so it was scarcely accurate to claim that the political process was
closed to adherents of abortion reform. Ely, who politically supports
liberalized abortion laws, nonetheless accords no legitimacy to the
Supreme Court decision. He views it as sheer usurpation, uncon–
nected in any plausible way to the constitutional text that gives the
Court whatever authority it may have to set aside legislative will.
How seriously, however, can one take the notion of courts as
interpreters "bound" by the text, so that one can truly tell when a
Court has gone beyond its mandate within the Constitution? Can an
interpreter ever plausibly say that there is no other available alter–
native reading of a text, where "available" implies staying within the
interpretive conventions of the relevant community of readers? Thus
one might have a Christian or a psychoanalytic reading ofJane Aus–
ten, but not an astrological one. (In Stanley Fish's homely term, the
latter would be an "off the wall" reading; to be "available," a reading
must be at least "on the wall" as recognized by the professional
reading community, whether literary or legal, of the time.)
We may have to ask whether there are "right answers" to ques–
tions of interpretation, as distinguished from simply a multiplicity of
available answers. Are there algorithms of interpretation that stip–
ulate authoritative answers to questions about a text, assuming that
the interpreter is competent? Or are texts hopelessly indeterminate?
It is no answer to the argument about indeterminacy of meaning to
point to admitted instances where presumably all of us indeed do
"know" what a text means, for example, a sign in the London tube
station indicating that "dogs must be carried up the escalator." We
do share a sense of what is being said. But there is the possibility of a
visitor from an alien culture going up to a ticket-seller and asking
where one picks up the dogs that one must carry up the subway.
