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.

Estimated reading time: 6 minutes

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.

Appoint Another One…and Another One…

And this is where a lot of the recent “one more justice” rhetoric comes in. If we can make it six to three, instead of five to four, then Roberts will join and Roe will be history—right? We just need to replace Ginsburg or Breyer, because we can count on Thomas, Alito, Kavanaugh, and…

Oh, did you think I was going to list Gorsuch there? Well, I used to, until I found out he joined Roberts in defecting from the conservative bloc on the issue of reinterpreting the Civil Rights Act of 1964. I’ll leave the analysis of that decision to my former professor, Hadley Arkes, but suffice it to say that “textualism,” “originalism,” and any other -isms which were supposed to be used as a litmus test for conservative jurisprudence have failed miserably. I mean, Gorsuch studied under John Finnis, a natural law philosopher! Gorsuch finding rights in “shadows of penumbras” of a major American law doesn’t give me much hope that he won’t uphold the same shenanigans with the Constitution.

And so we’re left with a five-man conservative “majority,” two of whom may not be conservative on any given day. Even if we add Amy Coney Barrett (the conservative fever dream), we’re counting on Roberts and Gorsuch not defecting on the same case (again) in order not to suffer a legal setback at least as big as Casey.

Certainly, too, we shouldn’t be so bold as to presume that a Republican Court nominee will protect the right to life of unborn humans. There have been too many times in the past in which exactly the opposite happened (Brennan, Souter, Kennedy, O’Connor). The whole system has proven insanely unreliable for those who would protect the vulnerable and quite consistent for those who would not.

Allow me to Suggest a New Strategy

Where does that leave us? Should we simply abandon the Court (by which I mean, abandon the presidency and control of the Senate)? Is politics rigged? The answer to the last question may be yes, but there are ways we can persist nonetheless. I’ll first offer some recommendations in the negative before exploring more positive ideas.

The most important thing is to stop creating test cases for a full-frontal assault on Roe since we can’t count on the Court. If we attack it directly right now – say, with a heartbeat bill – we will likely lose, and that defeat will cost us twenty or more years of progress. We cannot risk asking the Court to be our national legislator on abortion if they will likely continue to legislate abortion-on-demand.

We also don’t need to feel bound to support certain parties or candidates because of benefits we may or may not ever see. It’s possible that whoever wins in November will appoint one or more justices; or maybe they won’t, or maybe they will but it will be an ideological turncoat. At any rate, potential Court vacancies, while important, are not the be-all, end-all that should determine how to vote. Is it an important consideration? Sure. But if there are other compelling reasons not to support a candidate, we should feel free to decide against them whether or not they may or may not get a reliably conservative justice on the Court.

Don’t We Have a Three-Branch Government?

I know that last line sounds like heresy to some of you. I believe it’s because we’ve given entirely too much power to the Supreme Court. Our government is supposed to be one of checks and balances. What is our redress if the Court decides wrongly and overtly legislates evil? Surely it’s something better than appointing more justices and hoping they get it right next time!

The best check on the Court for a case as old as Roe may be the legislative power of the United States Congress (especially given that Roberts wants to defer to the legislature). It is a co-equal branch of government, which means it can tell the Court “thanks, but no thanks.” If Congress wanted, it could pass a national ban on abortion (I don’t mean a constitutional amendment, I mean an addition to the federal criminal statues requiring a simple majority) or laws otherwise limiting the scope and holding of Roe. Yes, any such law could be challenged in court, but nothing erases the legitimacy of the Court faster than repeatedly throwing out legislation by a duly-elected Congress.

What makes a congressional act infringing on Roe any different than a state heartbeat bill? States are entirely subject to federal courts on questions about the Constitution. Congress, unlike a state legislature, is on the same level as the Supreme Court, albeit with different functions. Congress can, and should, provide a check on the Court to keep it from running amok (as some may well say it has).

That’s not to say we’re anywhere close to that kind of a proposal having a chance of success. The Republican-controlled Senate couldn’t even pass the Born-Alive Abortion Survivors Protection Act. But what if, instead of focusing on just getting a Republican, any Republican, in the Oval Office, and packing the Senate with mushy partisans who will rubber-stamp court appointees, we systematically elevate pro-life people to national office?

Building even a small (but dedicated) legislative presence can be enough to force Congress to deal with something like abortion. Just look at the effect a tiny minority of “Green New Deal” representatives had on the national discourse or the more profound impact of the Tea Party bloc. Imagine getting even 25 Senators or 100 Representatives for whom abortion was a primary issue. That’s not a pipe-dream number; it just involves pro-life voters flexing their muscles in areas that should be strongholds, no matter if the pro-life candidate is a Democrat (as in Louisiana) or a Republican (as in Indiana).

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I’m not saying I have a foolproof plan to end legal abortion in America. Trust me, if I did, I would be implementing it right now. But if the Court proves untrustworthy—as there is every reason to think it will—we should explore other avenues for political success. Making a legislature that’s willing to legislate on abortion seems a good avenue to explore.

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