With the usual Kent Brockman caution that "only time will tell," yesterday's argument probably means that Roe v. Wade will soon become the newest member of the anti-canon. If so, that will complicate any evaluations of Justice Ginsburg's career. Her undeniable achievements for women will have to weighed against the equally undeniable fact that her decision to hang on to her seat after 2014 was a but-for cause of Roe's demise.
Equally interesting will be how an opinion overruling Roe will buttress its claim to authority by invoking other deceased jurists. I suspect that Judge Friendly's unpublished opinion on abortion will get significant attention, as he represents a gold standard for neutral jurisprudence. Will the dissenting views in Roe and Casey be lionized in the way that some of Justice Holmes' dissents were when the Lochner era ended, or will the new majority not go down that road?
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