He tries to find a silver lining for “reproductive rights” enthusiasts. He tries too hard.

He argues that “the failure of Alito and Roberts to join the concurring opinion by Thomas and Scalia calling for a reversal of all these precedents [Stenberg, Casey, and Roe] means that a further change in the Court will probably be necessary to produce a more fundamental shift in the constitutional law of abortion rights.” Well of course a further change in the Court is necessary, since Justice Kennedy has given no indication that he has rethought Roe or Casey. Alito, Roberts, Scalia, and Thomas do not a majority make. But are we warranted in concluding that Alito and Roberts aren’t for reversing those cases when a case that presents the issue comes up? I don’t see why we would conclude that. And whatever their reasons for not making a judgment of the issue now, their silence actually makes it easier to confirm another conservative justice in the future.

Then, he argues: “Every time the Roberts Court validates a technical and largely marginal exception to abortion rights by claiming to respect abortion rights, it will become more difficult to overturn those rights altogether.” Justice Ginsburg doesn’t seem to think so: “The Court’s hostility to the right Roe and Casey secured is not concealed. . . . And, most troubling, Casey’s principles, confirming the continuing vitality of .the essential holding of Roe,. are merely “assume[d]” for the moment, ante, at 15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846.

Kilgore praises Ginsburg’s dissent for its “brillian[ce].” I don’t agree, but on this point I think she’s right and Kilgore’s wrong.