The Corner

Law & the Courts

Would Five Votes to Overturn Roe and Casey Be Just as Good as Six?

Supreme Court Chief Justice John Roberts during a group portrait session for the new full court at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

In the history of the Supreme Court, there have been many high-profile 5-4 rulings. To name a few: Obergefell (same-sex marriage), Hobby Lobby (religious liberty), Casey (abortion), Miranda (rights of criminal suspects), Heller (guns), Citizens United (campaign finance).

One should always be cautious and not read too much into questions from Supreme Court justices at oral arguments, but it seemed on Wednesday that the five self-described originalist justices are interested in fully overturning Roe and restoring the right of legislatures to enact abortion laws, while Chief Justice John Roberts seemed to be seeking some compromise that would allow the Supreme Court to uphold Mississippi’s 15-week limit on abortion without overturning Roe.

A 5-4 decision has just as much force as a 6-3 decision, but the practical benefit of the latter is that in normal circumstances it is a little more secure. If a single justice who was in the majority of a 5-4 decision is replaced by a justice with a different judicial philosophy, the ruling may be reversed.

But in the Dobbs case, it would seem that a five-justice majority to overturn Roe and Casey would have the same practical benefit as a six-justice majority. Even if Chief Justice Roberts does not vote to overturn Roe now, it is almost impossible to imagine Roberts voting to reinstate Roe in the event a Democratic appointee fills the seat of one the five originalist judges. There is no stare decisis rationale for reinstating an overturned precedent, and Roberts can’t believe there’s a case for Roe on the merits.

Each justice has a duty to faithfully interpret the Constitution, of course, and each justice’s conclusion should not depend on whether he would be a lone dissenter or part of a five-justice decision or part of a unanimous decision.

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