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.
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.