We May Get a Conservative Chief Justice

The chief justice is an especially potent swing voter, because he also has the power to assign authorship of the majority opinion, including to himself. That can help shape a decision’s scope and direction—usually, in Chief Justice Roberts’s case, by making it more tentative.

If the chief justice is in dissent, however, the assignment power falls to the most senior associate justice in the majority. Clarence Thomas is now the most senior justice, so he will assign authorship any time he is in the majority and Chief Justice Roberts dissents.

Justice Thomas is something of an anti-Roberts. His lone concurrences and dissents are usually not incremental but adventurous, urging colleagues to break new legal ground or rethink old precedents. In June Medical Services, he argued that Roe v. Wade was wrongly decided and should be overturned—a position no other sitting justice has endorsed since Antonin Scalia died in 2016.

The decision on whether to overturn Casey (which has been the controlling precedent for three decades now) won’t be about the judges’ views about abortion, but about their views about intra-court stare decisis. There are at least six Justices on SCOTUS who believe thst Roe and Casey were wrongly decided (maybe Kagan would be a seventh, but you’d have to get her drunk before she’d admit it); the question is whether they would have the stones to do something about it. The easy thing would be not to tackle Casey head on (and instead nibble around the edges of what constitutes an “undue burden”), and that’s exactly what the Court has done for decades, even after Kavanaugh replaced Kennedy. But I think that we finally have the numbers to get this done.

One good thing about Gorsuch is that he doesn’t give a rip about what a prior court decided—if he thinks that the precedent was incitrect, out it goes. Thomas is the same, but on steroids. Alito generally is more traditionalist and cautious but he would overturn Casey in a heartbeat. And while Barrett is new to the judicial game, everything points to her being an originalist in the Scalia mold, and she won’t give a rat’s behind about what Kennedy, O’Connor and Souter wrote in 1989; she’ll say nicer things than Scalia did when she slices up a precedent, but she won’t hesitate to do so if she believes that the precedent was wrong.

So I think that we have four sure votes to overturn Casey. Those are also the four votes that will grant certiorari to a case about a law that could not be upheld without overturning Casey. I am not quite as certain about Kavanaugh, since he seems to prefer to seek compromises and avoid having to make a big decision when a little one could do, but if he is asked the question point-blank I think that he will rule that laws that burden the ability to get an abortion do not violate the Constitution.

At the justices-only conference at which justices announcechow they will vote on a case, the Chief Justice votes last, after the other eight have said how they will vote. As we know, Roberts cares more about “the Court as an institution” than about the Constitution itself, and nornally he would be loath to overturn a precedent such as Roe-cum-Casey. But once he hears that there are five votes to strike down Casey and its undue burden test, I think that it is precisely his interest in preserving tge Court’s “reputation” (as he sees it) that will lead him to vote to overturn Casey as well. First of all, if a precedent is going to be struck down, he would prefer for it to ve done 6-3 rather than by the dreaded 5-4 that he sees as a sin of conflict within the Court. But even more importantly, Roberts would want to be on the winning side of that vote so that he, not Clarence Thomas, gets to assign the author of the Opinion of the Court. Roberts’s greatest fear is for Thomas to write an Opinion of the Court that the media will depict as unnecssarily “divisive” and that might go further than required to decide the particular case at hand (perhaps by declaring intra-Court stare decisis to be illegitimate abd unconstitutional, which hapoens to be my humble opinion), and were Thomas in the majority and Roberts in the minority ithere would be no way for Roberts to stop that.

So I think that Roberts will be the sixth vote to overturn Casey, despite his preference for the precedent to remain in the books but get watered down some more, largely to keep Thomas from writing a more expansive opinion; this would be ironic because, in Roe v. Wade, Chief Justice Burger provided the seventh vote to strike down the Texas law that prohibited abortion (despite his disagreement with the whole right-to-privacy argument) solely because he wanted to avoid ultra-Leftist Justice Douglas writing the most expansive opinion possible. (Of course, Burger assigned the opinion to the “moderate” Justice Blackmun, who proceded to write an opinion so broad, creating such an absolute right to abortion, that it must have made Douglas blush.) And Roberts voting with the majority would not be as disingenuous as what Burger did, since at least Roberts does believe that Casey was wrongly decided and that states should be alliowed to prohibit abortion.

Once Roberts votes with the majority, he may decide to write the opinion himself, with a long explanation of why the need for judicial certainty dictated that such particular precedent, with its unmanageable test that depended on the eye of the beholder, be struck down, and that the issue that has long consumed American politics be returned fully to the political realm where it belongs. Or he might assign the opinion to Barrett, knowing that her language would be less harsh abd more limited than Thomas’s when striking down Casey and figuring that it would be better for his “legacy” if (i) a woman wrote the opinion and (ii) he won’t be remembered as “the judge tha struck down Roe v. Wade.”

So I think that it’s going to happen within the next couple of years. I think that January would be a good time for a state to pass a “heartbeat” abortion
ban without an exception for the “health of the mother.”

AuH2ORepublican, you think it would be 6-3 to OVERTURN Roe?

I suppose that is technically possible if EVERY GOP appointed judge voted the "right" way, which I think has about a maximum 5% chance of happening.

I agree Casey vs. Planned Parenthood in 1989 was the first time the court had a direct opportunity to overturn the 1973 Roe decision. What we saw in 1989 was three so-called "conservative" GOP appointed judges (O'Connor, Kennedy, and Souter, all of whom were "assumed" to be reliable when they were appointed) voted with the leftist RATS on the court to uphold Roe, but "modify" it a bit for "modern" society.

There's been no indication GOP presidents have learned their lesson since then (any judge appointed by an "R" president who CLAIMS to be an "originalist" will result in blind support from the GOP base and massive orgasms that they are a home run for conservatives)

Those who do not learn from history are doomed to repeat it, and I think the Bush and Trump appointments since then show they did not learn from history.

I agree Gorsuch seems to care far less about "judicial precedent", so he would be willing to overturn Roe, IF he disagreed with it. The problem is I think he AGREES with it. He might not be a rabid abortion-on-demand guy, but overall I think he agrees with the general premise of the decision that abortion is a "private" matter and the circumstances of whether to have one are a "complex" issue that ultimately rests with the woman and her doctor, so the federal government can't intervene and have a blanket ban on it. That's Roe in a nutshell.

I can't imagine Gorsuch voting to overturn Roe unless he LITERALLY has some kind of "come to Jesus" moment during his tenure on the bench and starts veering away from all the socially liberal culture he's embraced over the last 20+ years, pulls a "Kirk Cameron" and announces on TV that he's now some born-again Evangelical type who got re-baptized last weekend (I'm sure most of the MAGA voters on here would love that if it happened, but it ain't gonna happen). He certainly wouldn't vote to overturn it over sincere legal reasoning that Casey is judicial overreach.

Kavanaugh is more conservative (nickcarraway suggested Kav might ultimately end up slightly left of Kennedy, Impy thinks he's a vast improvement over Kennedy, I'm on the fence about whether Kav is a slight improvement or perhaps defacto the same as Kennedy). There's a slim chance he could surprise us and vote to overturn it. If that happens, it would mean he simply lied to get confirmed when he said he considered it an important precedent and "settled law" and publicly announced he wouldn't touch it.

Roberts could go either way. The biggest problem is Roberts seems to be increasingly veering leftward. At the time of Robert's appointment in 2005, I'd estimate about a 92% chance he'd overturn Roe. At the time Scalia passed and Gorsuch was appointed, I'd say about a 65% chance Roberts would vote to overturn. Today, I'd say about a 50% chance. You make a valid point that Roberts likes to be on the "winning" side for the sake of the court. So it would be interesting if Barrett does indeed cause Roberts to veer rightward more often. My gut feeling is that unfortunately the opposite may happen... the three commies might increasingly pull more GOP judges to their side because of the "lopsided" GOP presence, and convince the squishes to intervene to slow down the "extreme conservatives" on the court

Worst case scenario is 7-2 to uphold Roe (with only Alito and Thomas voting no), but I'd give that only a 1% chance of happening. Justice Barrett would pretty much have to go insane and embrace the dark side for whatever reason, which is totally at odds with entire past career.

Some of those oddballs things could happen though. I wrongly predicted the RAT crusade against Barrett would make their jihad against Kav look like a day at the beach. I suppose with it being so close to the election and that sucking all the attention out of the room, plus the fact Barrett was a female and the RATS pretty much blew their wad during the insane "Kav is a rapist predator" campaign, they were ill-prepared to destroy Barrett the same way. That was a bit odd since she's clearly to Kav's right and her appointment will obviously shift the precious "balance" of the court much more than Kav's did. In the end, the RATS just seemed to give up and say "screw it, we don't have the votes, let's just boycott this one and continue our plans to pack the court after we take power later"

It's very hard to overturn some "precedent" that's been enshrined in the fabric of American culture for decades unless there's some kind of sea of cultural change in the United States that forces the courts to address the issue. For example, the 8-1 Plessy vs. Feregsun being overturned by the 9-0 Brown vs. Board of Education. I'm still not sure how Earl Warren convinced EVERY justice to support his side on that one. Even some previously avowed segregationists voted to end segregation. Just shows you how influential a CJ can be.

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