Bench Memos

Law & the Courts

Michael McConnell’s Very Weak Argument on Judge Barrett and Roe

In a curious Washington Post op-ed, distinguished conservative law professor Michael McConnell argues that confirming and appointing Judge Amy Coney Barrett to the Supreme Court “would not end abortion rights.” He is certainly correct in the sense that the long overdue overturning of Roe v. Wade and Planned Parenthood v. Casey would simply restore abortion policy to the democratic processes in the states. Many states would surely provide robust protections for abortion for the foreseeable future, and even the most pro-life states might well allow abortion in limited circumstances.

But that isn’t the argument that McConnell is making. He instead argues that it is implausible to expect that the Court will ever overturn its abortion regime:

[I]n confirmation battles going back to the 1980s, abortion rights advocates have predicted that every nominee by a Republican president, if confirmed, would mean the reversal of Roe v. Wade. Yet it has never happened. Republican presidents have filled nine seats since Ronald Reagan was elected president; nine times the nation was warned that Roe was on the chopping block. Somehow, the blade never falls. Roe was reaffirmed this summer, in effect, by June Medical, with a majority opinion written by Chief Justice John G. Roberts Jr., an appointee of President George W. Bush. Roe is the Road Runner of all precedents. Wile E. Coyote just never catches up.

There are reasons Roe is so resilient — and one of them is not the legal persuasiveness of the opinion, which is nil. But the ruling is nearly a half-century old and has been reaffirmed multiple times by justices of both parties. Such a decision will not be lightly overruled.

This argument, which treats pro-lifers as chumps, is badly flawed. Only three (O’Connor, Kennedy, and Souter) of the justices appointed by Republican presidents since Reagan have voted to sustain the Court’s power grab on abortion, and all three are no longer on the Court. Roe and Casey weren’t even teed up for reconsideration in June Medical or in any other cases since Casey. It’s strange to see McConnell use a pro-abortion talking point, not sound legal analysis, in mischaracterizing those cases as having “reaffirmed” Roe.

It’s an elementary principle of the conventional stare decisis framework that Barrett (contrary to what her critics claim) accepts that a precedent “will not be lightly overruled.” But that observation merely tees up the stare decisis analysis; it does not carry it out. And although I certainly don’t claim to know better than anyone else whether Barrett or the four sitting Republican appointees who haven’t yet addressed the question would join with Justice Thomas in voting to overturn Roe, there is ample reason that they should.

McConnell continues:

[W]hatever one may think of abortion, the practice is so widespread and ingrained, and the right to it so intensely defended by a significant minority of Americans, that trying to use the force of the state to end it would wrench the nation apart — while almost surely failing.

The politics would not be kind to pro-lifers. Right now, abortion-related disputes concern marginal cases (such as late-term abortions, parental consent, sex-selective abortion and disposal of fetal remains) where public opinion is divided and the majority might even support increased restrictions. If Roe were overruled, the debate would shift to out-and-out prohibitions, where public opinion is squarely on the side of abortion rights. Republican Party primaries would feature fights to the death between purists and compromisers, and a united pro-choice Democratic Party would gain the advantage.

Insofar as McConnell might be read to be arguing that overturning Roe would be “trying to use the force of the state to end” abortion, that’s a ludicrous argument. Overturning Roe would return policymaking on abortion to the democratic processes in the states.

McConnell’s pessimistic claim that the ensuing politics “would not be kind to pro-lifers” might end up being right. But the fact of the matter is that the perpetuation of Roe has meant that “purists” on both sides haven’t had to try to build majority support for their positions and that the American public hasn’t had occasion to give abortion policy serious attention. Polls regularly show that the American people support various restrictions that the Roe/Casey regime doesn’t allow. There is no reason to expect abortion-rights extremists to moderate their demands and to be more effective than pro-lifers in crafting compromises in a post-Roe world.

Moreover, the genius of our system of federalism means that legislators in different states would adopt different approaches that best suit their citizens and would be free to revise those approaches over time. Far from “wrench[ing] the nation apart” (as Roe has done), overturning Roe offers the surest path to peaceful resolution of the abortion wars.

McConnell’s argument could easily be read to suggest that justices appointed by Republican presidents would (or perhaps even should) retain Roe in order to advance the interests of the Republican party. That would be a damning indictment, and it’s not one that I would make of any of the current justices. (I’ve heard others speculate that Justice Kennedy and Justice O’Connor might have had that motivation in Planned Parenthood v. Casey.)

Cultural elites have long subjected justices to intense pressure to retain Roe. It’s very unfortunate that McConnell seems to be piling on with them. I have too much admiration for Judge Barrett to believe that she would cave to such pressure rather than decide the matter on the basis of law.

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