Brett Kavanaugh, John Roberts, and the Prospect of Overturning Roe v. Wade

By James Dail (CMC ’20)

One of the main issues at the heart of the Kavanaugh hearings is the prospect of overturning Roe v. Wade, the Supreme Court case that established that women have a right to an abortion. That Kavanaugh may provide the pivotal swing vote to overturn Roe, given that the vote takes place at all after recent sexual assault allegations, is arousing strong passions on both sides of the issue. Kavanaugh himself has stated that the issue is settled precedent, but this is most likely a careful dodge of the question that he will continue to give until he is confirmed. His true feelings about the issue may have been revealed in a 2017 speech at the American Enterprise Institute, where he praised former Chief Justice William Rehnquist for dissenting in Roe. Additionally, a theme that President Trump has repeated constantly throughout his time in office is that he is committed to appointing justices who will overturn Roe. There is little reason to doubt him. It looks certain that if a case challenging the precedents set in both Roe and Planned Parenthood v. Casey, another major abortion case, is brought before the Supreme Court during the next two years, then the public can be reasonably sure about how Kavanaugh will vote. What all of this means is that the decisive vote will not be Brett Kavanaugh, it is going to fall to Chief Justice John Roberts, the Court’s new swing vote.

While Roberts is usually a reliable conservative, he has been known to side with the liberals on occasion, most notably in King v. Burwell, where he upheld the Affordable Care Act’s individual mandate provision. To glean evidence of how he will vote here, one must examine his past statements. There can be no doubt that Roberts is ardently pro-life in his personal convictions. He is a devout Catholic, and his wife is a member of the pro-life organization Feminists for Life. Furthermore, when he was working for the Department of Justice in 1990, he wrote a legal brief where he stated that Roe should be overturned.

Yet for all of this, there is reason to believe that Roberts would not vote ill not to overturn Roe outwrite. When asked about his judicial philosophy in interviews, a theme that comes up repeatedly is that he wants to preserve the institutional legitimacy and credibility of the Court. This is an incredibly important goal for him because the rest of the government has become a thoroughly partisan affair, and he wants the Court to be different. His thoughts on this manifest through his hesitancy in overturning established Court precedent. For if the Court were to constantly overturn its previous rulings only on a partisan basis and without a compelling reason that could provide potential for unanimity, then it can never give a definitive guide to Constitutional interpretation. Instead, it would become just as partisan as the House or Senate, which could mean that it would fail to provide a legitimate check on the power of the other branches should a valid need ever arise. It would also raise the question of why the Court would be needed at all. As such, Roberts both respects precedent and prefers narrow rulings based on technicalities that would avoid broad social upheaval. An example of the latter is the Court’s 7-2 ruling in Masterpiece Cakeshop v. Colorado.

While it remains possible that Roberts overturns Roe entirely, an equally likely option is that he avoids broad social upheaval and guides the Court towards placing significant limits on how easily someone might obtain an abortion, such as allowing states significant leeway in first trimester regulations. It’s possible that another conservative justice will be needed if the Republicans are to overturn Roe with complete certainty.

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