National Journal covers the debate on the left about whether to tee up another Supreme Court case on abortion. Many are wary of losing and setting a new precedent. One quote caught my eye.
“There is a sense that the current Supreme Court is less sympathetic to abortion rights than the Court that decided Planned Parenthood v. Casey, which was clearly less sympathetic than the Court that decided Roe v. Wade,” said Jonathan Entin, an associate dean at the Case Western Reserve University law school.
I’ll grant him the second part of that sentence: Casey allowed more restrictions on abortion than Roe did. I’m not at all sure he’s right about the first part.
The Casey Court split into three factions. Four justices were prepared to overrule Roe, 2 wanted a strong re-affirmation, and 3 jointly authored a plurality for Roe-but-we’ll-allow-some-restrictions. I assume that the pro-Roe bloc on the Court is now twice as large as it was then and includes all four of the current Democratic appointees. The anti-Roe faction may have four votes–but it could be that Roberts or Alito might want to avoid overturning the decision completely if it is not necessary to resolve a specific case. So far, then, I’d say we’ve got a movement in favor of being “sympathetic to abortion rights.” That leaves Justice Kennedy, who was in the Casey plurality himself.
Entin’s “sense” may come from the widespread perception on the Left that Kennedy’s decisions in abortion cases over the last fifteen years have chipped away at Casey. Kennedy has interpreted it to allow more restrictions than other members of the plurality did. But I am aware of no evidence that Kennedy’s views have changed at all. If they have not, then I think that the line-up of justices is no more anti-Roe than in 1992, and may be more pro-Roe.