It was my honor to befriend Judge Robert Bork in the last years of his life. Not surprisingly, I don’t find much amusement in the cesspool that judicial-confirmation politics has become since his name became a synonym for slander in 1987 — a debacle that changed history for the worse in more ways than the woodenly whimsical Anthony Kennedy’s assumption of what should have been the Bork seat.
Still, I admit to chuckling over the musings of Senator Susan Collins of Maine, a “moderate” Republican in the Kennedy mold. With the justice announcing his retirement after 30 years on the Court, a confirmation battle royale is shaping up over his successor, whom President Trump is expected to nominate on Monday. On cue, Senator Collins has let it be known that she would look askance at any nominee who has “demonstrated hostility [toward] and an eagerness to overturn Roe v. Wade.”
Go ahead and Roe, Roe, Roe your boat, Senator. Thanks to Justice Kennedy, we’ve actually been living in a Casey world — as in Planned Parenthood v. Casey — for the past quarter century. For good and for ill. “Don’t you dare touch Roe” is the political hyperbole of Democrats and their fellow travelers. It is not a serious legal position — as if serious legal positions had anything to do with confirmation politics.
Here is reality: Casey’s refinement of the right judicially manufactured in Roe granted expansive and expanding room to regulate abortion. The validity of those regulations, not the core holding of Roe, is what dominates abortion litigation nowadays. It is unlikely that cases will present a need to grapple with Roe; it is even less likely that Roe will be overturned, and even if this highly unlikely event were to come to pass, it would not render abortion illegal. Instead, abortion would once again be a question for the states, the vast majority of which would guarantee some degree of access to abortion. We are not going to move into a post-Roe era, but even if we did, no woman who could obtain an abortion today would be unable to get one post-Roe.
GOP control of the Senate is more notional than actual: There are just 51 Republicans, and really just 50 due to Senator John McCain’s obdurate hold on a job he is no longer physically able to perform. Majority Leader Mitch McConnell may have some small margin for defections because a few Democrats are up for reelection in states where President Trump is popular. Basically, though, even without any threat of filibuster (thank you, Harry Reid), Republicans have to stay united to get any judicial nominee confirmed.
This dynamic inflates the influence of Senator Collins and other GOP centrists, who could get spooked by the prospect of a Supreme Court justice who is too “conservative.” It is a sign of our wayward times that a “conservative” judge is one committed to construing the law as it is written, in accordance with what it was commonly understood to mean when adopted. You might think that’s simply what a judge is. But progressives rely on robed legislators to block the elected officials who beat them at the polls, and to impose on the nation what they cannot enact democratically. These are known as judges with “empathy.”
Collins wants you to know: She’s not one of those staid old Republicans looking for a staid old by-the-book jurist. She wants empathy!
And so she wants you to know she will brook no talk of overturning Roe. Rhetorically at least, this 1973 ruling’s fabrication of a constitutional right to abort unborn children retains for progressives its sacral status. But in point of fact, the Supreme Court itself has dismantled much of Roe’s framework. What survives is its narrowing core.
I do not mean to suggest that Roe’s core is trivial. There are, after all, well over 600,000 abortions per year in the United States. But have you noticed that the question of Roe’s vitality seems to arise only when there is a vacancy on the High Court during a Republican administration? That is because the question is political theater: Democrats eliciting verbal acrobatics from solid nominees who are well aware both that Roe is atrociously reasoned and that saying so will imperil their confirmation chances.
The real action on abortion today derives from Casey, decided 19 years after Roe. The real legal action, that is. That’s a caveat worth adding. If abortion ever gets rolled back in this country, it will be because a cultural shift forces legal change, not the other way around. Suffice it to say, I’m not holding my breath (see this smart column by our Michael Brendan Dougherty on the implications of Ireland’s referendum repealing its protection of the unborn).
Casey was a triple gut punch for conservatives. First, in a bitterly divided 5–4 ruling, the Court upheld the constitutional abortion right it purported to discover in Roe. Second, the main opinion, among the most farcical in the Court’s history, was jointly crafted by Reagan appointees Kennedy and Sandra Day O’Connor, along with Bush 41 pick David Souter. Third, while paring Roe back in significant ways, the trio reaffirmed a potentially limitless “substantive due process” right to “liberty” in any matter as to which five unelected lawyers decide dignity and privacy warrant it.
Bemoaning our democracy’s impertinent resistance to judicial ukase, Kennedy & Co. proclaimed in Casey’s opening line that “liberty finds no refuge in a jurisprudence of doubt.” And who could possibly doubt the justices’ “jurisprudence”? An account of “liberty” sprung not from legal precedent but from a metaphorical “heart” bursting with “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
We’d been warned that the “Constitution” is “living” and “organic,” but who knew it was hallucinogenic? If the Supremes were the Beatles, I’d be urging that we play Kennedy’s opinions backwards. That seems as good a way as any to divine which “attributes of personhood” are so “central to personal dignity and autonomy” that the Court must insulate them from the formerly autonomous People.
We’d been warned that the ‘Constitution’ is ‘living’ and ‘organic,’ but who knew it was hallucinogenic?
Casey’s fortune-cookie piffle is rivaled only by its arrogance:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . . its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
What would the Left say if a peer branch of government tried that? Imagine President Trump saying, “When in the performance of my executive duties, I resolve an intensely divisive border-security issue . . .” Or what if the Court had flexed its muscles this way in, say, Dred Scott or Korematsu?
There is so much stunning self-regard and overwrought prose in Casey that it’s easy to miss what, for purposes of confirmation politics, are the most salient parts: the ruling’s demolition of Roe’s capricious trimester construct and some of its post-Roe precedents. While you wouldn’t know it from listening to Senator Collins, the ruling that saved Roe was not exactly a bulwark of stare decisis.
In any event, as moderate Republicans tremble at the studied media-Democrat hysteria over Roe, it is important to bear in mind that Casey — more than Roe — is the law. That means Roe’s core ruling is very likely to survive, no matter who is appointed to the Supreme Court, for two reasons.
First, for all its human-resources-speak about the penumbral right of women to self-actualize in the modern world, Casey’s reaffirmation of Roe is highly qualified. It made clear that the state is free to adhere to a strongly pro-life policy even before “fetal viability.” The emphasis on state interest and viability, moreover, eroded the Roe fortress around first-semester and pre-viability abortions. Regulations discouraging abortion were permissible as long as access to pre-viability abortion was not made burdensome to the point of being practically unavailable. And viability is a dynamic concept, so as evolving technology made it possible to preserve and protect unborn life at earlier stages, states would have commensurate power to restrict or even outlaw abortion throughout more of pregnancy. (See, e.g., our Alexandra DeSanctis’s piece on the progress of federal legislation seeking to outlaw most abortions after 20 weeks, the point at which most unborn children are sufficiently developed to feel pain.)
To be sure, this is far from a perfect state of affairs for pro-lifers. But the national abortion debate should never have been moved to the federal courthouse for resolution, and pro-lifers cannot win it there in any event. It has to be won in the culture, from the ground up. Roe’s survival vel non will be a lagging indicator.
The second point is more problematic for conservatives. Roe is not a one-off. It was a dramatic but foreseeable progression in the Court’s oxymoronic “substantive due process” jurisprudence of the “mystery of human life” realm of “personhood.” The modern phase started with contraception (first rationalized by a theory of marital privacy, then, in fine make-it-up-as-we-go-along contradiction, extended by a conception of equality). It has since moved on to gay rights (including same-sex marriage, endorsed in Justice Kennedy’s Obergefell opinion in 2015), and now we are on to LGBTQ rights, three-partner marriage (and why stop at three?), and who knows what other transgressive erosions of bourgeois culture.
Regardless of a jurist’s legal position on substantive due process, or of the jurist’s moral or policy positions on what it has wrought, Roe is part of a doctrinal edifice. To reach out and try to overrule it, particularly in a case in which it is not necessary to do so, would be seen as an attack on the entire edifice. The Supreme Court is not going to take that on. A more conservative Court would reject the promiscuous language of Justice Kennedy’s “liberty” musings and admonish that the polling station, not the courthouse, is the place for working out most clashes between the individual and society. It is not going to turn back the cultural clock.
That is for us to do, or not. What we need from judges is to remember that our law is a reflection of who we are, not a tool to shape us into something else. What we need from confirmation hearings is to ensure that we get judges of that kind.