Supreme Court Conservatives grope for “non-political” rationales to overturn Roe v. Wade

It appears that Chief Justice John Roberts is looking for a way that appears to be “non-political” to overturn the 1973 Roe v. Wade decision on abortion. A recent paper by a legal scholar points out that in the oral arguments about a Mississippi abortion law a couple of weeks ago, Roberts focused on what the parties in Roe asked the court to do. In a master stroke of misdirection, Roberts shifted attention from what the Roe court held in 1973, to what the parties involved argued in that case. That is a new angle on attacking settled precedent (stare decisis). The New York Times writes:

A new study traces a trend at the Supreme Court: looking to what the lawyers had argued in assessing whether to follow a precedent. 

A decision in the Mississippi case is not expected until late June. If the court overrules Roe, an increasingly real possibility, it will have to explain why it is departing from the principle of stare decisis, which is legal Latin for “to stand by things decided.”

At his 2005 confirmation hearings, Chief Justice John G. Roberts Jr. said the Supreme Court should be wary of overturning precedents, in part because doing so threatens the court’s legitimacy.

“It is a jolt to the legal system when you overrule a precedent,” he said, listing various factors the court must consider before it takes the momentous step of discarding a precedent. They include, the court has said, “the quality of the decision’s reasoning.”

At the argument in the Mississippi case, concerning a state law that bans most abortions after 15 weeks, the chief justice refined that factor in an apparent attempt to dampen the jolt to the system.

He suggested that the fetal-viability line established in Roe was not a crucial part of the decision’s reasoning. “Was viability an issue in the case?” he asked. “I know it wasn’t briefed or argued.”

In shifting the focus from what the court had done to what the parties in the case had asked it to do, the chief justice was trying to justify upholding a 15-week line while stopping short of overruling Roe entirely, which would allow states to make all abortions illegal.

Richard J. Lazarus, a law professor at Harvard, explored this mode of argument in a recent article in The Supreme Court Review called “Advocacy History in the Supreme Court.”

The article makes the sensible point that a full understanding of a Supreme Court decision requires consideration of how the parties had framed the case.  

Chief Justice Roberts’s question about Roe was in a sense irrelevant, as the significance of fetal viability had been thoroughly argued in Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe’s core holding.

That made Roe a “super-duper precedent,” Senator Arlen Specter of Pennsylvania said at Chief Justice Roberts’s confirmation hearings. The chief justice did not adopt Mr. Specter’s terminology, but he did not quarrel with the senator’s larger point.

The NYT article points out that legal arguments in a prior decision can be relevant, so lawyers review those briefs and arguments. Another legal expert the NYT spoke with asserted that the opinion in a decided case can sometimes be less helpful than the prior briefs and arguments. But here Roberts’s inquiry went farther. His reasoning clearly suggested that the meaning and weight of a decision may depend on the arguments that had been presented to the court in Roe.

The NYT went on to point out that Roberts pulled a similar stunt in 2007. There, to limit race as a factor in assigning students to public schools to achieve integration Roberts cited a key precedent, the 1954 Brown v. Board of Education decision that banned public school racial segregation. In that 2007 case, Roberts wrote that his opinion was “faithful to the heritage” of Brown by quoting from the original briefs in the case and from the oral argument in 1952. The NYT comments on that clever tactic: “Lawyers who had worked on the Brown litigation called the chief justice’s analysis ‘preposterous’ and ‘100 percent wrong.’”

Whether it is preposterous or 100 percent wrong, it is clear that the Republicans on the Supreme Court are desperate to overturn Roe. The other Republicans are less concerned with the appearance of being political than Roberts, but it is clear that he wants the same outcome as the other Republican justices. 

This analysis reflects a criticism that for decades critics have directed at the court. They criticize the practice of deciding a case first and then trying to figure out how to make it look grounded in legal principle and not personal ideology or bias. Clearly, the Republicans on the court are rigid ideologues who are heavily biased to overturn Roe. That is a major part of why they were picked. 

Overturning Roe is probably what the Republicans are going to do, maybe with a ~65% or ~75% chance. They will do that at the end of next June, or maybe a month, two or three earlier if that is deemed politically helpful for Republicans running for office in the 2022 elections.

For some people, but not most Republicans, the harder Roberts tries to make the Supreme Court look non-political, the more political it looks. 

Questions: 

1. Is it the case that the harder Roberts tries to make the Supreme Court look non-political, the more political it looks? 

2. Is Roe a super-duper precedent, or is its precedent status irrelevant in view of the Republican judges’ (i) socially hyper-conservative political ideology, (ii) Christian nationalist dogma, and (iii) radical right political agenda for American society, government and law?