Codifying Roe v. Wade is an illusion

CNN writes about the likely futility of codifying Roe v. Wade, assuming the Democrats could do that. They cannot because of the filibuster. CNN writes:

Constitutionally, however, there is a problem with thinking that federal legislation will resolve this issue and keep abortion from returning to the Supreme Court. Even if Congress passes a law codifying Roe v. Wade, that does not mean that the brazen precedent-busting Dobbs Supreme Court will not have five votes to strike down the new law.

That is the problem with those who say that the court is simply returning this issue to the people. If Congress tries to pass a law, either way, that law will likely land right back in the justices' lap. The Supreme Court retains the power to reverse the people's will as expressed in the actions of Congress. That is what the power of judicial review means. To quote the most famous case in constitutional law, Marbury v. Madison, it is for the courts to "say what the law is."

Drafters of any federal Roe protection must not be starry-eyed. First off, people should stop using the term "codifying Roe." The phrase is misleading. Codifying in this case means to enact a statutory right, which is possible, but the term "Roe" refers to a Supreme Court ruling and Congress has no power to reverse a particular Supreme Court ruling and reinstate a precedent that has been overturned.  

In 2000, when Congress tried to overrule Miranda v. Arizona, for example, the court said "no" in a case called Dickerson v. United States: "Congress may not legislatively supersede our decisions interpreting and applying the Constitution." Three years earlier, they said the same thing in City of Boerne v. Flores: "Congress does not enforce a right by changing what the right is. . . [Congress] has no power to determine what constitutes a constitutional violation." In short, the moment a Roe codification is signed by the President, it will be challenged as unconstitutional, and we could be right back where we started -- in the Supreme Court.

That exemplifies the enormous power the Supreme Court has. Congress can codify or make a law as it wishes. But if the Supreme Court says the codification or law is unconstitutional, that is the end of it. 

It is surprising that this point has not been made loud and clear by the mainstream media. Or, surprising that I missed it. The current fascist Republican Supreme Court is just not going to allow any codification of Roe to stand.