Oral arguments on Wednesday did nothing to change my expectation that the Supreme Court will soon overturn Roe v. Wade and end a half-century of pretense that there is a constitutional right to abortion.
Perhaps it will squeak through only 5-4 with Chief Justice John Roberts leaning on stare decisis, but my guess is he’ll join a 6-3 majority upholding the Mississippi law at issue. This would fit his argument in Citizens United that respect for precedent cannot excuse perpetuating a constitutional abomination.
When the court hands down its decision, presumably as its last word before summer recess, the Left will explode in fury. The usual suspects will denounce the five or six justices who end Roe as lackeys of former President Donald Trump and “far right” ideologues” — probably as “white supremacists,” too, since that’s in fashion and protesters on Wednesday equated pro-life views with racism.
Above all, the originalist five or six will be accused of politicizing the court. Justice Sonya Sotomayor began precooking that charge by warning, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? … I don’t see how it is possible.” Come now, Madam Justice, it’s survived that for half a century although, granted, this consequence of left-liberal jurisprudence has inflicted much damage.
The reverse of what Sotomayor claims is true. If the judges finally acknowledge that Roe and its offspring were unjustifiable political decisions unmoored to constitutional principle — if they at last stop dodging the core problem with the 1973 decision — they will free the bench from politics.
This is not simply because the fight over abortion will switch to state legislatures, where it should always have been. It is also because the Left’s avalanche of imprecations and threats to pack the court will be empty.
The justices will send a signal on the highest-profile issue of them all that they won’t be bullied. The court will not again entertain such a flimsy argument on this subject as the one made by Justice Harry Blackmun, a jurisprudential disgrace that has fouled our national politics. No future court will discover a constitutional right to abortion in the emanations, penumbras, or any other dark and previously unnoticed corner of the Founding Fathers’ elegant document.
The Left knows this, which is partly why it long ago stopped pretending that abortion was a constitutional matter. It has paid a little lip service to its constitutional mirage to keep the issue fenced off from effective debate, but among respectable legal scholars, even abortion supporters conceded eons ago that Roe was insupportable.
Casuistical pro-abortion arguments about the “living Constitution” fell out of fashion before this century began. Democrats opposing Republican presidents’ nominees don’t bother with that anymore, and instead simply and frankly fight to defeat any nominee they suspect isn’t an abortion supporter.
In other words, Democrats and the wider Left acknowledge that abortion is not a constitutional matter. The fact that they are already preparing to rage against what they’ll say is a political and ideological decision makes this plain.
Ending the epoch during which the court was “balanced” between left and right — between robed legislators and originalists — will force an end to politicians’ attempts to slough off their responsibility to make difficult choices on policy. Expunging the gargoyle of Roe, and doing so on the basis of an originalist interpretation — that is to say, on the basis of honest and accurate interpretation — gives the nation a chance of restoring some order to the way it governs itself.
Although Roberts appeared to be looking for a compromise that would uphold the Mississippi law without demolishing the myth of a constitutional right to abortion, his newest conservative colleagues, Justices Brett Kavanaugh and Amy Coney Barrett, were more clearly skeptical about the basic question of whether the court was the proper place to adjudicate moral and political debates. For this, the two latest Trump-appointed judges were singled out for left-wing wrath. It was purportedly shocking that they didn’t vail their doubts about previous jurisprudence, as though they should have arrived on the highest bench in the land without having considered its most controversial decision of our lifetimes.
It is, rather, refreshing to see the core question dealt with frankly at last, rather than having justices hem and haw and sidestep it. We must wait six months to see if Wednesday’s augurs are haruspicating accurately, but it looks as though the Supreme Court has decided there will be no more ducking and weaving, no more dodging, and this time Roe will go.
