Balkinization  

Wednesday, May 28, 2008

Which is More Likely: Overturning Roe or Attacking Iran?

JB

Following up on Mark's previous post, I think the correct analysis of why a Republican dominated court is unlikely to overturn Roe is not that the Justices themselves are primarily motivated to keep the Republican coalition together. Rather, the argument has to do with Presidential motivations in nominating particular Justices to the Supreme Court. That is, if you focus primarily on the motivation of Justices after they get on the bench you are looking in the wrong place for an explanation.

Since the failure of the Bork nomination in 1987, it has become clear that Republican Presidents and the party itself would pay a political cost if the Supreme Court appeared ready to overturn Roe v. Wade. Hence they have chosen people who were likely to weaken Roe but not directly overrule it. Ronald Reagan, for example, appointed Anthony Kennedy as a compromise candidate who could win easy confirmation. Kennedy has turned out to be far more moderate than Robert Bork would likely have been, and indeed, one can hardly imagine Robert Bork writing either Casey or Lawrence v. Texas.

The exception to this general Republican strategy of appointing Justices who would weaken but not overturn Roe was Clarence Thomas. However, President George H.W. Bush calculated (correctly) that the Democrats would not have the nerve to reject an African-American nominee to replace Thurgood Marshall.

Justice Roberts and Alito went out of their way to avoid saying that they would overturn Roe, and Roberts even described Roe as settled law. This does not mean that Roe will never be overturned (although I predict that it will not be). Rather, it suggests that Republican Presidents have chosen not to invest resources in appointing people who will overturn Roe, and by and large they have gotten what they sought: a Court that has not overturned Roe but has cut back on the decision in significant respects. Indeed, I suggest, they have adopted a reverse litmus test-- only appointing people they predict will hollow out Roe rather than directly overturning it.

Which brings us to Mark's point. What will such a Court, constituted as it is, do in the period in which Republicans are out of power in both the Presidency and Congress? My prediction is that they will do pretty much what they have already been doing-- weaken Roe but not overturn it, if, indeed, any abortion cases come to the Court in the next few years. Certainly it is unlikely that Anthony Kennedy, having staked his professional reputation on the Casey compromise, will vote to overturn Roe now. And without Kennedy's vote, there are not five votes to overturn Roe.

If John McCain is elected, I predict that he will also follow the Presidential strategy of a reverse litmus test, appointing Justices who will keep the shell of Roe but hollow out its core. For the time being, Roe will survive. Of course, if the Democrats win the White House, they will probably appoint strong defenders of the abortion right. Either way, I predict that Roe will not be overturned in the foreseeable future.

Once we recognize that the correct focus is Presidential behavior and not judicial behavior, The question Mark asks about what Republicans will do can be refocused: It is not what Republican-appointed Justices will do when the party has nothing leftss to lose, but rather that Republican Presidents might do in such a scenario.

My guess is that with the Republican brand badly tarnished, and with the Democrats likely to control the Presidency and both branches of Congress for the next several years, the people to worry about are not the Justices, but President Bush and Vice-President Cheney. Cheney has for some time urged a preemptive attack on Iran. The Republicans will not have to clean up the mess that such an assault would create, and it might well force the hand of the next President to follow the bellicose policies of Messrs. Bush and Cheney. Although I predict that President Bush won't do it, I would be far more worried about an attack on Iran than an attack on Roe.

Comments:

Of course, what Professor Balkin is predicting is the way the courts normally work, i.e., rather than frontally overrule cases, judges hollow them out. I am not sure what the current situation is, but when I was in law school (class of 1984), Shepard's showed that Plessy v. Ferguson had been "questioned" many times, but never "overruled." So if Roe v. Wade meets the same fate, it won't be a nefarious novelty, but standard judicial practice.

Incidentally, you'll note that the Democrats haven't exactly been running on the kind of pro-choice platforms that would satisfy a radical feminist. Nor is it clear, more generally, that social issues are winners for the Democrats. So they may not be adverse to hollowing out Roe v. Wade either, as long as it's done gradually and in a way that preserves the abortion option for upper middle class women (i.e., first trimester abortions for women over 18, or whose parents consent, and who can pay for it themselves, must remain legal).
 

Abler minds than mine (notably JB and other bloggers here)have tried to forecast Supreme Court trends with varying successes.

To justify my own long record of inaccuracy, I have come up with a random-walk model, where stare decisis acts as a partial constraint, but party and presidential constraints are maximal at appointment but fade with length of incumbancy on the bench.

The result is short-term quasi-predictabilty and long-term uncertainty, if not to say unknowability-in-principle!

Using my dubious model, I come to similar conclusions as JB's. Roe will be with us for a while yet.
 

>President George H.W. Bush calculated (correctly) that the Democrats would not have the nerve to reject an African-American nominee to replace Thurgood Marshall.

Um, this glosses over a whole lot of sturm und drang that should not be disregarded. There was a large number of Democrats who were quite willing to oppose Thomas. He did not ease into his seat, as did Scalia.
 

Jack,

I think that Maslow's Hierarchy of Needs is far more predictive of how this Court will rule than any other theory from starie decisis to religious / political bias.

This is a very bad time to teach Con Law....from BUSH v. GORE to BUCKEYE CHECK CASHING, INC. v. CARDEGNA, the Court has recognized exactly zero authority in State Constitutions and State Supreme Court rulings - albeit that the Court has changed since Bush v. Gore - Buckeye applies exactly the same cavalier approach to jurisprudence that makes Bush v. Gore our Dred Scott v. Sandford.
 

There are some problems with this account of Republican presidential motivations. First, Reagan didn't intend to appoint a Justice who would affirm Roe (or who would merely "weaken" it). He tried to appoint Robert Bork. Then he tried to appoint Doug Ginsburg. He only settled for an unknown when Democrats kept blocking his appointments. I don't see how you can pin Kennedy's last-minute change-of-heart in Casey on anything that Reagan even remotely intended.

Second, Roberts and Alito both paid lip service to Roe, but again, they know that any candor on Roe would get them immediately blocked. So it's very tenuous to suggest 1) that they will ever vote to affirm Roe (people who know Alito and Roberts doubt that this is the case), or 2) that if they vote in such a way, it will have been what Bush intended.
 

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