Really A Disaster For Roe?
The loudest debate in the political and legal blogospheres right now hinges on how severe a blow yesterday's ruling was to the future of Roe. The thin view suggests that Carhart paves the way for further restrictions on abortion law and and "it reweights how courts should balance the competing interests articulated in Casey by giving greater deference to the State’s important interest in regulating abortion." That's the thin argument!
The thick argument concludes that
Not only will this change in the standard applied by Casey make litigation to protect a woman's reproductive freedom much more expensive and difficult, but it will have the perverse effect of making the fact that abortion regulations almost invariably have much more impact on poor, rural women an argument in their favor.
But here's a third view, suggested to us by a smart reader:
1. Chief Justice John Roberts was on the prevailing side. So it was he who picked Justice Anthony Kennedy to write the decision. (Maybe he knew Kennedy would render a theatric and visually evocative piece of legalese -- Kennedy, after all, has long hinted that the majority decision in Casey v. Pennsylvania would indeed allow for a federal partial birth abortion law.)
2. Roberts and Justice Sam Alito concurred in whole with Kennedy.
3. Justice Scalia and Justice Thomas added a concurrence that attacked Roe specifically.
4. Roberts and Alito did not sign on to that.
5. Ask: what about the concurrence did Roberts and Alito not endorse?
6. Are Roberts and Scalia willing to preserve Roe? Or were they less willing to rock the boat on their first abortion case? The legal eagle assumption is that one ought not read their failure to join the Scalia/Thomas concurrance as anything other than their desire to limit their opinion to Carhart.
7. Are there only two justices on the court who would -- today -- take the opportunity to overturn Roe?
Note: Quin Hillyer has an interesting take on Kennedy's theory of the case.
(2): Roberts and Alito--as well as Scalia and Thomas--joined Kennedy's opinion. To concur is to agree with the outcome without necessarily approving of the reasoning. One can joint in part and concur in part, but to "concur in whole" is to join.
Had Roberts and Alito only concurred in Kennedy's opinion--had they not joined it and written separately to uphold the constitutionality of the Act--then the court would have still upheld the Act (by 3 & 2 against 4), but the reasoning by which the Act was declared valid would not be binding on future Supreme Court decisions.
(Now, depending on what you think of the quality of Kennedy's reasoning, this may not seem like such a bad thing.)
For an opinion of the court to have precedential authority, a majority of the justices hearing the case must agree (5 of the 9, or 5 of the 8 if someone's recused). If no portion of the court's decision gains those majority votes, then the narrowest holding is controlling. (In a 4-1-4 split, a very narrow opinion signed by a single justice can be controlling).
Reading too much into those tea leaves. CJ Roberts and J Alito may have joined J Kennedy's rationale (and refrained from joining the concurrence's rationale) simply to assure that J Kennedy stayed on board. Otherwise, if no one else joined J Kennedy's rationale, he could conceivably have jumped to the other side - or written a narrower opinion - resulting in a less favorable overall outcome (from their viewpoint, which I do not share).
Plenty of room for grave concern on the pro-choice side (beyond the current holding, which is bad enough), but little definitive evidence of what is actually in the offing.