Roberts and Alito and Roe

Ross writes:

The weaker, but to my mind more plausible case that would justify a pro-lifer casting a protest vote against McCain on foreign policy grounds is the one that Antle and Larison put forward – namely, that there’s little reason to think that the Senator from Arizona will put an anti-Roe Justice on the Court, so a vote for McCain isn’t really a vote against abortion anyway. I think they are mistaken on this point, just as I think that Larison is mistaken when he suggests that Roberts and Alito would vote to uphold Roe, and I suspect that pro-lifers who choose this election cycle to give up on the GOP would end up snatching defeat from the jaws of victory.

To which Daniel responds:

At the same time, I don’t think that John Roberts sat before the Judiciary Committee and perjured himself when he said that he thought that Roe was the “settled law of the land” and then went on to say, “There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.” To expect that Roberts is a reliable anti-_Roe_ vote is ultimately to believe him to be a liar, in which case it is not clear why anyone would trust him one way or the other.

I think Daniel is right about Roberts. About Alito, I’m not so sure, but I’m guessing he would uphold some narrowed version of Roe as well.

Jack Balkin offered a smart framework for the meta-question five years ago. As to the specific question of what Roberts will do, he advances, convincingly, the notion that Republican appointees will tend to narrow the scope of Roe rather than overturning it outright.

At his federal appeals court confirmation hearings in 2003, Roberts said Roe was “the settled law of the land” and he could “fully and faithfully” apply that precedent. I don’t believe he was lying.

However, replacing Justice Sandra Day O’Connor with Roberts is likely to mean the Supreme Court will uphold many more laws restricting abortion. The list of such laws is endless, ranging from partial birth abortion bans to limits on abortions for minors. Courts now enjoin new abortion laws as soon as they are passed if they burden some women’s right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar.

My sense is that Roe has been reaffirmed too recently for Roberts and Alito to vote to overturn it outright. They will instead hollow it out.

P.S. – Then there is the fact that overturning Roe won’t have the effects most people, including lefty anti-_Roe_ contrarians, think it will, as Will Baude argued some years back.