As somewhat of a follow-up post to my analysis of the deciding vote in Russo v. June Medical Services, I want to caution optimists and pragmatists on the pro-life side. There has long been an implicit deal whereby we are granted court appointees who will (theoretically) protect life and religious liberty as long as we go along with the general Republican platform. The problem, as Sen. Josh Hawley recently pointed out, is that the bargain hasn’t worked, and we don’t have a great reason to think it will suddenly start working in the future.
There has been much clamor about the “conservative” Roberts Court overturning Roe v. Wade. I’ll admit, I indulged some optimism at first, though it quickly became apparent that getting a majority to overturn long-standing precedent required at least one more conservative justice. But recent cases have illustrated how fickle the Republican-appointed justices are, as contrasted with the utter steadfastness of most Democratic appointees.
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First, the Chief
Let’s take a look, first, at the man in the center: Chief Justice John Roberts, who is quite happy to be a centrist even though he’s supposed to be a conservative. He seems to be concerned primarily with protecting the legitimacy of the Court (and implicitly the legal system), so that when they make a controversial decision the outcome of the case is still respected. Without respect for the integrity of the Supreme Court, the thinking goes, there is no real arbiter about law and the Constitution in America.
I’ve already demonstrated the problematic nature of Roberts’ insistence on institutional values, as he refused to overturn a precedent he voted against and maintains was incorrect. But, perhaps more tellingly, the appeal to the legitimacy of the Court was one of the premises of the Court’s decision to uphold Roe in Planned Parenthood v. Casey. I’m not saying Roberts is dog-whistling that he won’t overturn Roe…but we shouldn’t count on him as the deciding vote.