They also know firsthand how the issue has poisoned the judicial nomination process. Justices Clarence Thomas and Brett Kavanaugh underwent a level of personal vilification unlike anything else to be seen over the last century of Supreme Court nominations. For that we can thank Roe.
Roe dictated to all 50 states a right to abortion on demand not discernible from the text or history of any provision of the Constitution. Its baselessness as a piece of constitutional law has been well established and widely acknowledged by scholars across the political spectrum.
The same is true of Planned Parenthood v. Casey (1992), which reworked Roe by discarding its trimester framework and setting the viability line as the relevant standard. That line is at issue in Dobbs, where the court must consider whether Mississippi could draw a pre-viability line at 15 semanas.
Could the court uphold the Mississippi law in a way that just rewrites Roe/Casey to provide for an earlier abortion right defined by some other line? Casey had replaced Roe’s exercise in hapless line-drawing with another.
The current court would commit grave error in Dobbs if it replicated Casey’s gamesmanship with yet another baseless exercise in line-drawing. En otras palabras, the only principled outcome here is for the court to overrule those two precedents, which are as unprincipled as any cases decided within living memory.
Interestingly, the attorneys arguing against Mississippi’s law effectively reinforced this notion by pushing back on the idea that there could be any other acceptable line besides viability. En otras palabras, there are no grounds for a half-baked decision.
For that matter, what the court’s three liberal justices – Stephen Breyer, Elena Kagan, and Sonia Sotomayor – had to say was remarkably devoid of legal analysis and almost entirely devoted to arguments of policy or the political effects of overturning precedent. Por supuesto, the same can be said for Roe and Casey themselves.
Sotomayor’s histrionics were particularly rich. She asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” As if she and her liberal colleagues have not toppled precedents they want to overturn as readily as a blowtorch goes through tissue paper.