Will Roe go next year?
We can consider ALL THIS legal musing which is difficult to follow, at least for me (makes my head hurt), but perhaps it’d be better if certain judges just keep things simple…“Thou shalt not kill”
I’d be most curious to hear Don McClarey’s legal opinion…
Good article, I think Prof. George is right as to why this case SHOULD be the death of Roe and Casey. My cynical mind fears, however, that out of the five or six Justices whom one might expect to vote in favor of outright and explicit reversal, (Alito, Thomas, Barrett, Kavanaugh, Gorsuch, and maybe Roberts), at least two of them will chicken out. We would then, as Prof. George explains, be in an even bigger mess than we are now, depending in its details upon what manner of escape the recalcitrant Justices devise to mask their cowardice in Constitutional word salad. For example, a “concurrence in the result” might be the method, with an opinion purporting to find some Constitutional middle ground between reversal of Roe/Casey and striking down the Mississippi law, or perhaps conjuring up some kind of procedural argument for avoiding outright reversal. Either approach would avoid a majority ruling for reversal, thus creating an illogical result and serving only to further muddy the waters.
Reading Supreme Court tea leaves is always difficult, but if Roe is not expressly overruled I suspect it will be gutted. Prior to Roe abortion was a state concern with almost no Federal involvement. I think a majority of the Court will be tempted to give this issue back to the States and end the Court’s role in the unending abortion war. Roe was part of the power grab by the Court to bring more and more of American life under its sway, but unlike other such power grabs, think school desegregation, Roe has never been accepted by a sufficient portion of the American people to end constant resistance to it. We will soon be seeing the 50th anniversary of Roe, and that rogue decision is no better accepted now, after endless cases, than it was when first issued. Justice Scalia noted this in his dissent in Planned Parenthood v. Casey twenty-nine years ago:
There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon to be played out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
Thanks Don!
Thanks for that reminder of J. Scalia’s great wisdom, and for making his point again (which I missed). Even the snowflakes on the Court should want to overrule Roe and Casey, both because it is legally right and in hopes of banishing the issue from their arena entirely.
@ Frank,
Out of their arena until some case of “person-hood” or the like comes up in the future. Like the article says at the end about if Roe were overturned…
“Some states will continue to permit the procedure until the Court acknowledges that the unborn possess the right to life.”
What about future legal arrangements to place a roadblock on overturning Roe?
If the SC whips out on overturning Roe, do you see a push from the Left to codify RvW so any future attempts would be halted before it could start?
I recall Biden and Harris during the robbery of the election speaking of codifying RvW.
If the SC whips out on overturning Roe, do you see a push from the Left to codify RvW so any future attempts would be halted before it could start?
They’ve done that in some states like New York. However, what one legislature does a future legislature can undo. Roe prevents the normal political process being undertaken in regard to abortion in the states.
Thank you.
Understood.