Abortion

The End of Roe v. Wade?

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Riffing off George Packer's recent New Yorker piece, "The Fall of Conservatism," legal scholar Mark Tushnet wonders if the conservative crack-up might destroy Roe v. Wade as well:

A common intuition, sometimes voiced, is that a conservative-dominated Supreme Court hasn't overruled Roe because the Court's conservatives knew that doing so would be a disaster for the Republican Party, splitting the party's coalition and reducing its attractiveness to moderates and independents who agreed with Roe's "core holding," as the joint opinion in Planned Parenthood put it….

But what if the coalition has already been split, and the Republican Party has already suffered a political disaster? There's nothing left to hold the Court's conservatives back. Indeed, the prospect of a long run of Democratic appointments to the Court—true, the initial appointments to the Court are likely to be replacements for some of the liberals on the Court today, but that can't last forever—gives the conservatives reasons to take their best shot sooner rather than later.

Whole thing here.

Tushnet is a sharp Court watcher and this is certainly an intriguing idea. But there are some problems with it. First is Chief Justice John Roberts. Will he abandon his devotion to judicial "modesty" in favor of an all-out assault on settled precedent? Remember that during his confirmation hearings, Roberts described Roe as "the settled law of the Land…. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision…. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey."

I know I should be careful about taking any political entity, even a Chief Justice, at his or her word, but there you go. On the other hand, it's easy to imagine Justice Clarence Thomas going for broke in Tushnet's scenario. In Thomas's view, unconstitutional decisions should be overturned, period, precedent be damned.

There's also the mercurial Justice Anthony Kennedy to consider. He's one of the authors of the Roe-affirming Planned Parenthood v. Casey, after all. What's in it for him? Let's imagine an Obama presidency combined with Packer's conservative meltdown. Why would Kennedy make enemies of the Court's current and future liberal justices? He quite obviously delights in his role as the majority-making swing vote. I just don't see him poisoning the well.

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  1. On the other hand, it’s easy to imagine Justice Clarence Thomas going for broke in Tushnet’s scenario. In Thomas’s view, unconstitutional decisions should be overturned, period, precedent be damned.

    An admirable view, for sure. I just wish it was being executed by a person who has actually once or twice *read* the Constitution. Most of his decisions seem to indicate otherwise.

  2. A common intuition, sometimes voiced, is that a conservative-dominated Supreme Court hasn’t overruled Roe because the Court’s conservatives knew that doing so would be a disaster for the Republican Party

    That’s about as cynical as it gets, boardering on “conspiracy theory.” But I tend to agree.

  3. The Justices are appointed for life, and I’m pretty sure that their egos are large enough to prevent them from caring too much about Team Red vs. Team Blue once they’re in office.

    Their own political philosophies are a different matter, though. My guess is that Alito, Thomas and Scalia would vote to overrule Roe if they got the chance, since they never saw it as valid precedent to begin with. Roberts and Kennedy are a different matter.

  4. Give Thomas some credit, he’s often ruled against his own personal beliefs in favor of Constitutionality.

  5. I seriously have trouble imagining a Supreme Court Justice running such a partisan political calculus.

    They’ve been around long enough to know that’s a fool’s game.

  6. Most of his decisions seem to indicate otherwise.

    There’s some serious Thomas hatin’! Most? Seems like a stretch. Let’s start with what you consider to be his most egregious breach.

  7. Most of his decisions seem to indicate otherwise.

    Actually the exact opposite. My first rule of SCOTUS rulings is that if Thomas and Scalia disagree, Thomas is right.

    Raich, for example.

    While Thomas makes mistakes, he is, after all, human, he seems to have a clear, if extreme, view of the constitution. One that requires having read it a few times.

    Im not sure Kennedy even considers the constitution when making decisions.

  8. The question is how long it takes for this thread to devolve into a feministing vs. christianisting battle royale.

    ding ding round one

  9. My problem with Thomas, is he only seems to find his constitutional fortitude in dissent.

  10. My problem with Thomas, is he only seems to find his constitutional fortitude in dissent.

    That’s just representative of the differences between majority opinions and dissents. Majority opinions generally are crafted on narrow grounds (the narrowest on which 5 justices can agree). Dissents are often written individually, so you can really hear the justice’s voice.

  11. My understanding is that Thomas feels it should be a decision left to the states not the federal government. Do people have a problem with that stance?

  12. brotherben | May 28, 2008, 12:52pm | #
    The question is how long it takes for this thread to devolve into a feministing vs. christianisting battle royale.

    ding ding round one

    No bells inside! Not OK!

  13. Who has two thumbs and hates George Packer? THIS guy.

  14. On Thomas:

    Kids have no Rights —

    Board of Education v. Earls, Morse v. Frederick.

    Precedent doesn’t matter unless we want to fuck the 4th Amendment in an uncomfortable place, in which case it suddenly matters —

    Georgia v. Randolph

    The president can do whatever he damn well pleases in wartime —

    Hamdi v. Rumsfeld, Hamdan v. Rumsfeld.

    —————————————

    There’s more of course, but that’s just for starters.

  15. There’s some serious Thomas hatin’! Most? Seems like a stretch. Let’s start with what you consider to be his most egregious breach.

    I’ll second that request. Personally, I like robc’s assessment.

  16. Even Thomas’s vote on the “wrong” side in Oregon was solely to take a 2nd shot at the majority in Raich.

  17. In Thomas’s view, unconstitutional decisions should be overturned, period, precedent be damned.

    The barbarian! Applying the Constitution as written! Impeach him!

  18. A common intuition, sometimes voiced, is that a conservative-dominated Supreme Court hasn’t overruled Roe because the Court’s conservatives knew that doing so would be a disaster for the Republican Party

    I’ve been saying for decades, “Republicans, be careful what you wish for”.

  19. “Precedent” is such a dickless legal method considering the previous generation’s liberal judges complete disregard either for traditional jurisprudence or plain meaning of text (somehow the people have a right to an abortion but not the right to keep and bear arms).

    Its time to fuck them back while we can.

  20. conservative-dominated Supreme Court

    I realize that I have a skewed perspective but it puzzles me that anyone can utter such a phrase with a straight face.

    Lean to the left! Lean to the right! Stand up! Sit down!

    Fight, Fight, Fight!

  21. not the right to keep and bear arms

    Isn’t the 2nd Amendment precedent enough? Oh, sorry, guess not.

  22. I hope so. As a Reason reader, you should too.

    “The End of Roe” is something Libertarians should favor, whether for or against abortion, because that decision represents a terrific assault on the 10th Amendment.

  23. The whole premise is flawed. Conservatism is as popular as ever, it’s Republicans that are unpopular.

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