That’s a really tough question.
Right now, the Supreme Court is hearing oral arguments in the Mississippi case, and court watchers are parsing the justices’ questions for clues about where their thinking is going.
This game of “Clue” is producing a lot of handwringing in the liberal media, which may be overdone.
True, Mississippi’s brief asked the court to overturn Roe v. Wade, contending it was a bad decision from the get-go, which gives the court an opening to do that. But I found the brief unimpressive, more polemical than reasoned, and something less drastic makes more sense.
I say that because justices tend to be cautious about overturning major precedents, and aren’t insensitive to public opinion and politics. The majority of Americans support abortion rights, and abolishing those rights would provoke a politicalfirestorm against the court. Justice Sotomayer, a liberal, gave her conservative colleagues something to ponder when she said to Mississippi’s lawyer,
“You want us to reject … viability and adopt something different. Fifteen justices over 30 years, since Casey, have reaffirmed that basic viability line. Four have said no, two of them members of this court, but 15 justices have said yes, of varying political backgrounds. Now, the sponsors of this bill, the House bill in Mississippi, said, ‘We’re doing it because we have new justices.’ … Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
For these and other reasons, many commentators have concluded the court will further restrict abortion rights, but stop short of overturning Roe v. Wade. I ran across a fascinating piece in Forbes, published in May of this year, titled “No, The Supreme Court Is Not About To Overrule Roe v. Wade,” that argues an outright overturn “is very unlikely” and predicts a narrower decision which may not even lead to “major new restrictions on abortion.” (Read it here.)
I’m not so sure, but it’s possible.
It’s also possible the court won’t use this case as the vehicle for what it wants to do. They may lay down some new rules about how abortion cases are to proceed in lower courts, as the Forbes article suggests, focusing on procedure instead of substance. That gets rid of the case without having to really decide anything, which the justices may want to save for another day (or a better case).
I just don’t know.
Today, the Denver Post said (here),
“Chief Justice John Roberts is searching for a compromise to preserve some basic right to abortion while moving it earlier in pregnancy, perhaps as early as 15 weeks. But based on today’s oral argument, it seems unlikely that any of the other justices is interested. Justice Brett Kavanaugh, in particular, seemed to telegraph a willingness to overturn Roe v. Wade altogether.”
This is only more playing “Clue.” But one thing that writer said should rattle every lawyer’s nerves. He suggested Kavanaugh wants the Supreme Court to stay out of abortion disputes altogether, and leave it up to individual states. If so, that’s the clearest indication yet that Kavanaugh doesn’t belong on the court. If the highest court won’t decide the biggest legal issues facing the country, why even have a court? Deciding those issues is what the job is.
When the federal Constitution must be interpreted, its interpretation must be the same in every state; federal constitutional rights shouldn’t depend on which states you’re in. The states necessarily must get direction on this from the federal courts. Kicking the can on this responsibility is like a football coach not showing up on game day and staying home to watch the game on TV, leaving the players to fend for themselves. That’s no way to run a railroad or a country.