Heller, Casey, and Party Politics

Slate's blog on legal issues.
March 20 2008 9:56 AM

Heller, Casey, and Party Politics

One theory that has been circulating for some time has been that the conservatives on the court will never overrule

Roe/Casey
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because doing so would be bad for the Republicans. Instead, on this view, the conservative justices will just nibble away at the abortion right without ever really jettisoning it. It's not the most attractive account of how the Supreme Court operates, but it's a theory nonetheless. I've never really bought this view, and now I think the oral argument in

Heller

points against it. Here's why. Probably the most politically galvanizning outcome from

Heller

 would be a decision that upholds the D.C. gun law

that would get the gun rights folk hopping mad and thus supermobilized, and it would no doubt create a political headache for those on the other side. And yet, from all appearances, it looks like the conservatives on the court are plenty eager to strike down the statute in the course of recognizing the individual's Second Amendment right to keep and bear arms that the NRA has been pressing for years. Doesn't that suggest that, as soon as there are five solid conservative votes in place,

Roe/Casey

really is likely to be overturned, short-term partisan calculations notwithstanding?