I think that the assessment of the editors of the Wall Street Journal about the likely impact of replacing Justice Kennedy on the Supreme Court is about right:
The first thing to keep in mind is that this is what Democrats and their media allies always say. They said it in 1987 when Justice Kennedy was nominated. They said it in 1990 about David Souter, again about Clarence Thomas in 1991, John Roberts and Samuel Alito in 2005, and Neil Gorsuch in 2017. They even claimed the Chief Justice might overturn Roe because his wife is a Roman Catholic. Mrs. Roberts is still waiting to write her first opinion.
The liberal line is always that Roe hangs by a judicial thread, and one more conservative Justice will doom it. Yet Roe still stands after nearly five decades. Our guess is that this will be true even if President Trump nominates another Justice Gorsuch. The reason is the power of stare decisis, or precedent, and how conservatives view the role of the Court in supporting the credibility of the law.
Start with the Court’s Obergefell ruling that legalized same-sex marriage in 2015. The ruling was only 5-4 and Justice Kennedy wrote the majority opinion with a formidable dissent by Chief Justice Roberts.
Yet there’s almost no chance the Chief would reverse Obergefell now. Tens of thousands of gay couples have been married across the U.S. since the ruling. They have changed their lives based on it. Is the Court now going to tell those couples that states can declare their marriages void? Or that their property rights under marriage laws are no longer valid?
A key part of the Court’s stare decisis calculation is “reliance interests,†or how and how many people have come to rely on a precedent. Chief Justice Roberts cited reliance interests in his Wayfair dissent on state internet sales taxes this term, and its logic is even more compelling for same-sex marriage.
A different stare decisis logic applies to Roe, which was one of the Court’s worst rulings but is now 45 years old and embedded in American law. While abortion is still hotly debated, the Court has reinforced the right many times.
I don’t think I’ve ever expressed myself on the subject of abortion here. I think abortion is wrong; I think that subsidizing it would be bad public policy; I think that Roe was bad jurisprudence. I also think that Roe should not be overturned for reasons of stare decisis and on First Amendment grounds.
Contrary to the claims of some Democratic leaders, I think that Roe will continue to be the law of the land in 18 months and in 18 years. I think it’s here to stay. The most I think that replacing Justice Kennedy would do is to reaffirm another long-neglected aspect of Roe: the determination that states have an interest in the lives of the unborn.
There seems to be a widespread, even growing misunderstanding of what Roe v. Wade actually found. It found that the level of scrutiny of state laws governing abortion changed based on the number of weeks of gestation. It did not provide for abortion on demand; it did not create an absolute right to abortion. Presently, no states have an outright ban on abortion; nine states have no restrictions on abortion. I think that’s likely to continue whoever becomes the next Supreme Court justice.
Stare decisis is not necessarily forever. Submission to precedent is as much a custom and attitudes about it on the court or in society could change in the future.
I think those seeking to protect Roe at all costs should spend less energy on the courts and more on garnering support for a constitutional amendment.
This court has overturned plenty of prior decisions. It will overturn more. What I think you are missing is how important this issue is to the GOP base. If Roe v Wade was overturned, Trump would surpass Reagan in the GOP pantheon. Do you really think Trump would miss out on that? I think it would probably energize the base enough that the GOP wins several more presidential elections. I think the long term result is what you describe, that many individual states will approve abortion and many won’t, but I will be surprised if there isn’t a big push to overturn it. If RBG goes down and Trump gets yet another pick the chances of overturning it are 100%. I would put it at 60%-70% with the current pick.
Steve
People say a lot of things; what they do is something else again. The GOP base says they support reducing the size of government AND they think that Reagan was a great president. But Reagan didn’t reduce the size of government—he expanded it. Every Republican president since has.
The issue is less what they say than what conservative judges will do. I think that conservative judges are less likely to overrule previous rulings other than under very specific conditions and those conditions don’t obtain in the case of R v. W.
As Mr. Dooley noted, even Supreme Court justices pay attention to the election returns but that doesn’t mean that they react to them as the members of Congress do.
Roe v. Wade‘s majority decision was poorly done and it has created political havoc but it hasn’t created legal havoc. The SCOTUS is more likely to overturn in cases of legal havoc. I’d like to see the statistics on SCOTUS reversing itself.
In the worst-case scenario of completely overturning Roe, it would mean the issue will fall on the states and the Congress. I think for the majority of states, not much would change. For conservative states, abortion could be greatly restricted.
But a complete overruling of Roe seems pretty unlikely to me. It seems much more likely that a solid conservative court would chip around the edges, as they’ve done in other areas.
I did the research. The Supreme Court has reversed itself eleven times this century, less than once per session. So it’s not exactly unheard of but it’s not “all the time”, either.
Two of the overturning cases were Lawrence and Obergefell. The majority opinion in both cases was written by Justice Kennedy. I may go back and determine how many of the majority opinions in the cases this century in which the Court overturned itself were written by Justice Kennedy.
Update
Quick summary: Kennedy wrote half of the opinions this century in which the Court overruled itself, the only justice to write more than one.
The focus on Roe vs Wade seems to miss the forest from the trees. President Trump is not a traditional culture warrior; abortion and gay marriage are not his rallying cries.
Trump’s cultural flash points are more about immigration, trade, the 2nd amendment. Think about what generates the most controversy during his campaign and presidentcy.
Here are certainly issues more relevant about next nominee; what are powers of the States, the Judiciary, the Executive and Congress on immigration. The same question on trade; how much can states impede products from other states with policies they oppose. How much can states regulate firearms. And certainly the one issue that’s bedeviled America, race relations.
On Roe vs Wade, what’s the role of technology in undermining how it is to be applied? The framework it came up with in 1972 was 10 years after a President lost a son that was born 5 weeks early (week 35). Now a days, babies born at week 23 have a 50/50 chance of survival.
On NPR this morning, someone pointed to Roberts’ repudiation of Korematsu as evidence of how credible it is that Roe v. Wade could be overturned.
Wrong: Korematsu was only overruled in the court of history, and boy is that a strange point to make. Was that you, Ms. Totenberg?
That’s the power of the Internet for you. People are trying to back the facts out of their convictions rather than forming their views through observing the facts.
Although it may not seem like it I do my level best that when my information changes, I alter my conclusions. The reason it doesn’t seem like it is that the facts support my views pretty well. I don’t need to make up facts to support them.
” But Reagan didn’t reduce the size of government—he expanded it. Every Republican president since has.”
But they have a narrative for that. Reagan wanted to cut spending, but the Democrats reneged on the deal to cut spending. Doesn’t matter if that is true or not, it is what they believe. AFAICT, the last time the court really looked at Roe v Wade, not just parts of it, they had a 5-4 vote in PP vs Casey. Is there any doubt about how Thomas, Alito, Goresuch and next nomination will vote? I don’t think so. That leaves Roberts. What happens if he votes against Roe v Wade? The next day he is still top judge. He is a hero at every conservative gathering he attends. His family is set for life. So, if the prior vote had been 7-2 or 8-1, suggesting they really do value precedent, I would be behind you on this. Instead, it looks to me like they need just one more vote.
Steve
steve,
Except everyone who ruled on Casey is (or will be in Kennedy’s case) retired except Thomas. I’m not sure we can extrapolate that 5-4 in Casey to some future case that we don’t even know the outlines of yet.
It’s easy to see why abortion is such a thorny issue. It’s fundamentally an argument over competing rights. If you believe life begins at conception then you must consider it murder, and wrong. If you believe life begins later you can entertain the notion of a woman’s rights.
It’s always seemed ghoulish to me to hold on to the notion of the superiority of the women’s rights into late term. Why not just hold on to abortion rights until a week after birth. How about a month?
I’ve never heard a pro-abortion person make an argument that seems to hold, and a rationale that could not be resolved, within the first trimester. I suppose there could be one, I just haven’t heard it
BTW – contrary to much reporting and advocates tales, most other countries do not have carte Blanche abortion rights. That position appears to be primarily an American one.
Canada basically has abortion on demand. In Australia it depends on state and territorial laws. In New Zealand after the 12th week, the procedure must be performed in a hospital and you’ve got to find several doctors to approve it.
In Mexico it depends on state law. In most states abortion is a crime and the woman may be prosecuted. Mexico City has abortion on demand up to 12 weeks. After that it’s only legal in limited circumstances. In Brazil it’s legal if the pregnancy endangers the life of the woman or she’s been raped. Otherwise it’s a crime and she may be prosecuted.
What concerns me more is the very widespread idea that abortion on demand is the law of the land here. It varies by state. In other words people are concerned that a right they may not have will be taken away.
Here in Illinois a viable fetus may not legally be aborted. Minors must notify a parent in writing or get a court order to receive an abortion.
Yeah. Lots of standards. Predominantly Catholic countries are easy to understand. But even in Europe (and standards vary widely) one generally does not have the type of unfettered access the get out of my vagina types would have people believe.
I mentioned that before. Roe v. Wade confirmed the state’s interest in the unborn. Those who think otherwise are mistaken.
BTW, the most restrictive laws are not in Catholic countries but Muslim countries, particularly in Africa and the Middle East. Among the many reason I’ve suggested that progressives here should be aware of what they’ll be getting in new waves of immigrants.
steve:
Do you believe that Supreme Court justices make their decisions solely based on political considerations? If not, what weight does politics have? I think that overall the Supreme Court makes its decisions 75% on the law and 25% on politics/ideology. That varies by individual justice with Sotomayor, Ginsburg, and Thomas more like 50/50 and Alito more like 60/40.
I don’t think that Supreme Court justices are quite as political as you seem to and if you approached the question from a quantitative standpoint you’d arrive at the same conclusion.
Dave- Link goes to SCOTUS decisions last year. Start a top and go through list. A clarification on double jeopardy is topic with heavy political overtones in the US? Dont think so. Do we have pages of blogs with name calling by the left and right devoted to resolving the False Claims Act. I haven’t seen it, but feel free to point it out. SCOTUS makes 70-80 decisions a year now. Most of them are not about deeply contentious issues. There are a handful of cases each year with significant political consequences and impact. That is where ideology really comes forward and is the deciding factor. In Kennedy’s case, he was conservative but with libertarian overtones so he would support things like gay rights sometimes. You can be sure that changes with the next nomination. Those picks have been heavily screened and they aren’t going to let through anyone who doesn’t pass every conservative litmus test.
https://en.wikipedia.org/wiki/2016_term_opinions_of_the_Supreme_Court_of_the_United_States
Steve