Crucial crossroad, or more of the same?
Every election cycle, we are told that the future of the Supreme Court, and particularly the future of abortion jurisprudence, is at stake. This election-centric view infects the mainstream media, which routinely publish October headlines like “This time, Roe v. Wade really could hang in the balance,” as the Los Angeles Times declared last month. But such speculations lose sight of the inherent unpredictability of any single election’s effect on the Court. Moreover, the Roberts Court has shown little inclination, and has little motivation, to dramatically alter the abortion-law landscape.
Got Consent?
The trouble with predicting that a particular presidential election will make or break the right to abortion begins with the fact that history has shown otherwise. Presidents do not get free rein in making appointments to the Court. As Richard Fallon of Harvard Law School told the HPR, “the dynamics [between the Senate and the presidency] are very complicated.” The textbook case study is Ronald Reagan’s 1987 nomination of Robert Bork, which the Democrat-controlled Senate blocked because of Bork’s obviously anti-Roe sentiments. Five years later, the Senate’s resistance was rewarded when Anthony Kennedy, who eventually got the spot denied to Bork, voted with the 5-4 majority in Planned Parenthood v. Casey, which reaffirmed Roe’s “central holding” while also permitting a number of state restrictions. Ed Whelan, president of the Ethics and Public Policy Center, told the HPR that “it’s safe to assume” the Court would have overturned Roe if the Senate had confirmed Bork. The failed Bork nomination should warn against overlooking the Senate and overemphasizing on the influence of a single presidential election on the federal judiciary.
Even after they chart the treacherous waters of the Capitol, the justices are far from predictable, especially if one’s only clue is the president who nominated them. The Court’s oldest liberal, 88-year-old John Paul Stevens, was nominated by Republican Gerald Ford. Kennedy, a moderate conservative who has drawn the right’s ire for his vote in Casey among other issues was nominated by Reagan. George H.W. Bush, who would later give us Clarence Thomas, nominated David Souter in 1990 with a promise from his Chief of Staff, John Sununu, that Souter was a “home run” for the conservative base. The base was more than a little dismayed when Souter voted only two years later with the Casey majority. Of four Reagan/Bush appointees, only two voted to overturn Roe in 1992, further suggesting that the presidency’s effect on the Court, and particularly on its abortion rulings, is often overstated.
The Roberts Court and Roe
For these reasons, perhaps the best indicator of the direction a Court will go on an issue is where it has been already. In 2007’s Gonzales v. Carhart, Kennedy sided with the conservative bloc in upholding a ban on partial-birth abortions. But Kennedy’s majority opinion accepted the principles of Roe and Casey as “controlling,” a concession that may not have appeased pro-choice advocates, but which nevertheless indicates the durability of the Casey settlement. Gonzales, then, was a status quo decision: states can limit abortion access in the interest of protecting life, but Roe is still on the books as the controlling precedent. Liberals like Jessica Arons, Director of the Women’s Health and Rights Program at the Center for American Progress, maintain that the Court has been “undermining” Roe with decisions like Gonzales and Casey. But Roe’s reversal, despite the perennial pre-election warnings, likely will not soon materialize.
The two Bush-appointed justices, Chief Justice John Roberts and Justice Samuel Alito, signed on to Kennedy’s opinion in Gonzales but not to Thomas’s separate concurrence, which argued for overturning Roe explicitly. This makes the guessing game more difficult. Partisans cannot even agree on the meaning of Roberts’s and Alito’s comments to the Senate regarding Roe: Arons told the HPR that Roberts “certainly said” he would respect Roe’s precedent, but Whelan denies that he made any pro-Roe gestures whatsoever. Jeffrey Rosen of George Washington University reported to the HPR that Justice Stevens believes his newest colleagues “are prepared” to overturn Roe. Unfortunately, Gonzales is not very instructive in deciding whom to believe; it only indicates that the Court is reluctant to strike down a popular and ultimately minor restriction on the abortion right. If the Court were directly challenged on Roe’s central holding, its considerations would be far more complicated.
Casey’s Enduring Precedent
In such a case, there are reasons to believe that the Court would be reluctant to revisit the Casey standard. For one, the principle of stare decisis (“let the decision stand”) demands that the justices consider whether Americans have “come to rely on the law being a certain way,” according to Arons. If the question only concerned the justices’ personal feelings about abortion, it is probably safe to assume that Kennedy, a devout Catholic, would never have joined the Casey majority. There is little doubt that Alito and Roberts are personally pro-life, but this does not make them sure votes for overturning a precedent, and a constitutional right, that gets older every day. Moreover, the Court as an institution is generally hesitant about creating or abridging constitutional rights by mere 5-4 votes (Roe was decided 7-2). Fallon told the HPR that a Court composed of “seven justices who thought Roe was really a mistake” would probably throw out the precedent, but “it’s less likely if you had only five.”
In all likelihood, then, the Court will continue to narrowly construe the abortion right and permit most state restrictions without overturning Roe. This approach fits the general tenor of the Roberts Court, which has decided even its most controversial cases as narrowly as possible. For example, last term’s headline-making decision, the D.C. v. Heller gun-control case, announced a constitutional right to gun ownership while leaving “unsettled,” in Fallon’s words, the circumstances under which it may be infringed. The Court has also taken several business-related cases, which rarely make headlines, often scramble the Court’s ideological divisions, and involve statutory rather than constitutional interpretation. In the current term, it appears to be focused on small-bore cases almost “by design,” according to Rosen. And Arons says that Chief Justice Roberts seems more interested in “consensus-based opinions” than judicial salvos in the culture wars. To alter the Casey compromise one way or another would invite controversy that ultimately might harm the prestige and power of his Court. In this climate, and given the history of confirmations past, to predict how a single election might lead to any particular decision is to overlook the interplay among other important factors.