Roe Will Go

 From First Things:

Let me offer a prediction, free of any face-saving hedge: Next year, the Supreme Court will hold that there is no constitutional right to elective abortions. In Dobbs v. Jackson Women’s Health Organization, a case pending before the court, it will return the issue to the states for the first time in forty-nine years. It will do so explicitly, calling out by name, and reversing in full, the two major cases that confected and then entrenched a constitutional right to elective abortion: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). And the vote will be six to three.

Why do I think so? I have no inside information. I know most of the Justices, but I would never ask what they intend to do in a case, and I’m sure none would tell me if I did. But it’s widely thought, and I myself believe, that six of the Justices believe Roe and Casey to be grossly unfaithful to the Constitution and unjust. None will want to entrench those precedents. The question observers debate is whether some of the six might prefer merely to chip away at those precedents. The reasons for this gradualist approach would be to avoid making the Court seem politically motivated and to avoid drawing the Court further into political fights (by, for example, empowering a push for court-packing).

Never mind that Dobbs may be the best chance the Court ever gets to fully reverse Roe and Casey. Forget, too, that it took decades to get a Court like this, years for a case this clean to work its way up the legal system, and nine months for the Court to decide to take it. Apart from all that, a halfway ruling in Dobbs—one that upholds Mississippi’s law but stops short of overruling Roe and Casey—would not avoid politicization. Indeed, it would backfire spectacularly. And it would not be worth the costs. All this follows from four points that are clear to anyone who has spent time with this case and with the broader issue of abortion’s legal status. Hence my prediction.

First: If “politicization” means making the Court seem driven by politics rather than law, Roe and Casey are the ultimate causes of politicization. And having this Court stick by those precedents (when, as seen below, they are squarely at issue) would only heighten the impression that the Court is doing politics, not law. For the public knows that the Court is majority originalist and that originalism cannot be squared with Roe and Casey. So if the Court maintained those precedents against a head-on challenge, no one in the nation would doubt that it had done so for fear of the political fallout. And this signal that the Court is susceptible to political blackmail would only deepen the problem.

Second: Though other cases might have left room to uphold an abortion regulation without fully overruling Roe and Casey or resorting to made-up rationales, this case does not. Any such ruling would have to rest on reasoning that was groundless, vague, or entrenching of some sort of abortion right. It would either exacerbate the Court’s reputation for politicized decision-making, multiply its forays into the political warzone, or extend the damage done to our legal and political order by Roe and Casey’s survival.

Third: Developments this summer make it clear that a failure to overturn Roe and Casey outright would do more than increase those precedents’ immediate harms. It would shatter the conservative legal movement. Scores of filings in Dobbs suggest that the conservative legal movement now sees this case as the ultimate test of this Court’s position on reversing Roe, which is in turn the ultimate test of the Court’s commitment to constitutionalism. Anything less than reversal of Roe would be a wholesale defeat for the conservative legal movement. It would put wind into the sails of critics who have in recent years claimed that the conservative legal establishment is faking a commitment to restoring the courts to principled constitutional reasoning, and is really only interested in securing judgeships for its cronies. (Read more.)

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