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 .


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



More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

Yes, Black Families Tend to Spank More. That Doesn’t Mean It’s Good for Black Kids.

Why Greenland’s “Dark Snow” Should Worry You

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

The Best Way to Organize Your Fridge


The GOP’s Focus on Fake Problems

Why candidates like Scott Walker are building campaigns on drug tests for the poor and voter ID laws.

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

Farewell! Emily Bazelon on What She Will Miss About Slate.

  News & Politics
Sept. 16 2014 7:03 PM Kansas Secretary of State Loses Battle to Protect Senator From Tough Race
Sept. 16 2014 4:16 PM The iPhone 6 Marks a Fresh Chance for Wireless Carriers to Kill Your Unlimited Data
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
Brow Beat
Sept. 16 2014 6:23 PM Bryan Cranston Reenacts Baseball’s Best Moments to Promote the Upcoming Postseason
Future Tense
Sept. 16 2014 6:40 PM This iPhone 6 Feature Will Change Weather Forecasting
  Health & Science
Sept. 16 2014 4:09 PM It’s All Connected What links creativity, conspiracy theories, and delusions? A phenomenon called apophenia.
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.