The Corner

Law & the Courts

Justice Kavanaugh Refuses to Buckle

Supreme Court Associate Justice Brett Kavanaugh speaks during his ceremonial public swearing-in in the White House in Washington, D.C., October 8, 2018. (Jonathan Ernst/Reuters)

The press coverage of the Supreme Court’s decision not to block the implementation of a Texas law against abortion has been overwhelmingly negative and frequently idiotic. See, for example, this article by Felicia Sonmez in the Washington Post, which presents Kavanaugh’s vote with the majority as a sign that he deceived Senator Susan Collins (R., Maine) when he told her he would give some weight to precedent. Sonmez notes that liberal activists are saying that Roe has effectively been repealed, and doesn’t mention anyone who disputes this dubious contention. Beyond mentioning that the law was designed to overcome pre-implementation challenges, she says nothing about any of the pesky legal issues that came into play in the decision — which would have complicated her conflation of those issues with the ones involved in any reconsideration of Roe.

There is nothing in the logic of the decision about Texas that implies that Roe and Casey should be reversed. But it does tell us something worth knowing about how the justices will handle that question. There has been a lot of speculation that Justice Brett Kavanaugh will fear voting to reverse Roe even if his understanding of his constitutional duty would compel it: that he will seek to avoid the opprobrium that would be associated with such a vote; that he will see reaffirmation of Roe as a way to come back into good standing with liberal opinion after the trauma of his confirmation hearing; that he will especially hesitate to overrule the abortion precedents if it means breaking with Chief Justice John Roberts.

Whatever else one thinks of the justice, he is surely no political naïf. He had to have known that voting as he did in the Texas case would bring him bad press, including accusations of misleading Collins. He did what the law compelled anyway, and split with Roberts on the issue. None of this is a guarantee that he will see reversing Roe/Casey as the right thing to do in the pending case about a Mississippi law that presents that issue to the justices. It is, however, a good sign that he will do what he sees as the right thing and take the resulting flak.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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