Which Is More Likely: Overturning Roe or Attacking Iran?

Slate's blog on legal issues.
May 28 2008 10:22 AM

Which Is More Likely: Overturning Roe or Attacking Iran?

Mark Tushnet has speculated that with nothing left to lose, and the Democrats likely to gain political power in the near future, the Republican-appointed justices on the Supreme Court might vote to overturn Roe v. Wade because they no longer fear that overturning Roe will seriously damage Republican electoral changes—at least, that is, any more than they have already been damaged. I believe this result is unlikely, on several grounds.

I think the correct analysis of why a Republican-dominated court is unlikely to overturn Roe is not that the justices themselves are primarily motivated to keep the Republican coalition together. Rather, the argument has to do with presidential motivations in nominating particular justices to the Supreme Court. That is, if you focus primarily on the motivation of justices after they get on the bench, you are looking in the wrong place for an explanation.

Since the failure of the Bork nomination in 1987, it has become clear that Republican presidents and the party itself would pay a political cost if the Supreme Court appeared ready to overturn Roe v. Wade . Hence they have chosen people who were likely to weaken Roe but not directly overrule it. Ronald Reagan, for example, appointed Anthony Kennedy as a compromise candidate who could win easy confirmation. Kennedy has turned out to be far more moderate than Robert Bork would likely have been, and indeed, one can hardly imagine Robert Bork writing either Casey or Lawrence v. Texas .

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Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.