Ed Kilgore says I am “impressively honest” in asserting that Chief Justice John Roberts and Justice Samuel Alito are being “dishonest” about their position on Roe. It’s not a compliment I can accept.

I think there may be a difference of judicial temperament between Roberts and Alito on the one hand, and Scalia and Thomas on the other, that can easily be confused for a difference in judicial ideology. My guess–and it’s only that–is that Alito and Roberts believe that cases should be decided on the narrowest grounds possible. (Maybe they’ve been reading Cass Sunstein.)

In other words, I suspect they reasoned: “I don’t need to decide whether Roe is good constitutional law to decide the partial-birth abortion case, and therefore I’m not going to pronounce on the matter. If a case ever requires me to make a determination about Roe and Casey, on the other hand, then I will make that determination then.” That seems to me a defensible approach–as is the alternative approach taken by Scalia and Thomas, who after all had already gone on record about Roe in a case (Casey) that did require them to state a position on it.