Can the Supreme Court compromise?

Orignally published on 2021-11-30 17:04:50 by slate.com

On Dec. 1, the most important battle over reproductive freedom in 29 years will take place at the Supreme Court. The justices will hear Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s 15-week abortion ban that doubles as a direct attack on Roe v. Wade. The case will test whether Donald Trump’s three justices will fulfill his campaign promise to overrule Roe, allowing states to ban all abortions starting from conception.

Each side of this showdown has generally framed Dobbs as a one-question test with a yes-or-no answer: Should the Supreme Court uphold or abolish the constitutional right to abortion before fetal viability? Each side agrees that the outcome lies in the hands of three justices who make up the center of this hard-right court: John Roberts, Brett Kavanaugh, and Amy Coney Barrett. Legal advocates have aimed every argument at this powerful new troika. Conservative commentators have warned that their failure to overturn Roe could blow up the conservative legal movement—and maybe the Republican Party, too. Anything short of Roe’s complete dismantlement, they claim, could spell doom for the movement and the party that elevated them to the bench.

The right’s pressure campaign has grown so overwhelming in part because it has a sense of déjà vu. A court stacked with GOP appointees seemingly on the brink of bulldozing Roe is exactly where things stood in the last faceoff over Roe in 1992’s Planned Parenthood v. Casey. Back then, the future of abortion rights appeared about as bleak as it does today. Five justices had previously expressed hostility toward Roe, and two more were perceived as foes of the decision. There was a single Democratic appointee on the bench, and he rejected all constitutional protections for abortion.

Then, as now, the prospect of a middle ground seemed unfathomable. Rather than seek a bargain that might chip away at this anti-Roe majority, Planned Parenthood attorney Kathryn Kolbert took an all-or-nothing approach. With the presidential election looming, she sought to force the issue, demanding an up-or-down vote on Roe’s validity. President George H.W. Bush’s Justice Department had come out swinging against abortion rights, and a decision overruling Roe—especially one joined by his two justices—could make the race something of a referendum on reproductive freedom.

But something strange happened when Kolbert began speaking that day. The justices, usually so quick to jump in with questions, remained silent. Kolbert went on for an astounding eight minutes before Justice Sandra Day O’Connor interrupted with the first question. Was it true, O’Connor wondered, that the court had just two choices: overturn Roe or uphold “all its aspects”? Might there be another path? Justice Anthony Kennedy chimed in with a similar query: Could the court affirm the core right to abortion only by upholding Roe “in its most rigid formulation”? Or was there another “logical possibility in this case”?

In retrospect, these comments foreshadowed the court’s eventual decision in Casey. O’Connor and Kennedy, along with Justice David Souter, charted a new course: They replaced Roe’s “rigid” strict scrutiny standard with a new “undue burden” test that allowed more restrictions on abortion, including mandatory waiting periods and parental consent for minors. At the same time, they preserved Roe’s “central holding,” declaring that no state may impose an outright ban on abortion before viability (at about 24 weeks). The trio cited several reasons for watering down Roe while retaining its “essence,” but the predominant factor was stare decisis, or respect for precedent. “An entire generation” had “come of age” relying on Roe “to make reproductive decisions.” To overrule the precedent “under fire” would “subvert the court’s legitimacy beyond any serious question.”

Justices, even very conservative ones, do not typically appreciate being treated like pawns in someone else’s game.

Casey provoked a sense of betrayal, if not outright trauma, within the conservative legal movement. It prompted GOP attorneys to develop a more sophisticated vetting process for judicial nominees under the slogan “no more Souters.” Potential Supreme Court justices are now carefully screened for their anti-abortion bona fides with thinly veiled questions about “unenumerated rights” and “substantive due process.”

There is good reason to doubt that Roberts, Kavanaugh, or Barrett will pull a Souter in Dobbs. The chief justice has upheld a weak version of abortion rights in the past. But in the process, he pointedly noted that no party asked the court “to reassess the constitutional validity” of the right to abortion. Even if the chief justice does uphold pro-choice precedents, advocates will still need Barrett’s or Kavanaugh’s vote. Both jurists auditioned for the Supreme Court by criticizing Roe, and neither has ever voted to block an abortion restriction. Both voted to let Texas’ six-week abortion ban take effect in September (though both also appear uncomfortable with its vigilante scheme). And one of them cast the decisive vote to hear Dobbs in the first place.

On the eve of Dobbs—before a tsunami of protesters descend upon the court, before nerve-racking oral arguments before a partly empty courtroom, before months of tense deliberations behind the velvet curtains—the smart money counts five votes to gut Roe.

The same was true, however, on the eve of Casey. And while Kolbert herself believes Roe is now as good as gone, the less extreme conservative justices could still pull a rabbit out of the hat. Once again, the parties have asked the court to go big or go home: Abortion providers, the Justice Department, and Mississippi agree that the court must either strike down the 15-week ban or overrule Roe, Casey, and the rest.

But there are, as always, alternatives. Most obviously, the court could move back the point at which states can prohibit abortion outright from 24 weeks to 15 or perhaps 12, the end of the first trimester. (The vast majority of abortions occur before this point.) It could hold that states do not impose an undue burden on abortion so long as they give patients a sufficient window to terminate their pregnancies. A diminished right to abortion would survive, battered but extant—whereas a decision overruling Roe would lead to total or near-total bans in roughly half the states. Due to “trigger laws,” a dozen states would shutter their abortion clinics the moment Roe falls. Compared with that radical outcome, a 12- or 15-week cutoff might not seem like the apocalypse to pro-choice advocates if it is enshrined as a durable new rule by which lower courts must abide.

Anti-abortion advocates are terrified of this prospect; their many amicus briefs scorn the idea of a compromise, insisting that the court must eradicate Roe root and branch. They are frightened because they understand the appeal of such a trade-off to Roberts, Kavanaugh, and Barrett—who, after all, have disappointed the right with improbable trade-offs in the past. Abortion foes would receive such a ruling as a crushing blow to the GOP’s judicial confirmation machine and to the conservative legal movement. Foot soldiers of this movement are already warning of chaos and fury if the court stops short of overruling Roe. They have condemned such a decision as “a massive defeat masquerading as a victory” and insisted that “there is no middle ground,” no “intellectually honest” compromise. Alongside the Republican Party, they have spent years preparing for this moment. If they fail to deliver, the explosion of rage and recriminations may destabilize the entire operation.

Justices, even very conservative ones, do not typically appreciate being treated like pawns in someone else’s game. Souter, O’Connor, and Kennedy certainly didn’t, and their disloyalty to their political benefactors preserved some semblance of reproductive freedom for the last three decades. On Wednesday, when Roberts, Kavanaugh, and Barrett speak, we should listen for all the usual clues: If they express concern for precedent, stability in the law, and legitimacy of the court, they may be leaning toward compromise. If they express skepticism toward Roe’s reasoning, interest in scientific advances since 1973, and concern for the life of the fetus, they’re likely preparing to dismantle pro-choice precedent.

But we should also listen for one thing that the justices are not always able to hide: frustration. Frustration that they face a binary choice rather than the opportunity to craft a new compromise. Frustration that the movement responsible for their appointments now demands their votes in return for the favor. Frustration that, if they vote as their patrons insist, they will be helping a vulgar, lawless, twice-impeached president achieve a campaign pledge. Everything about Dobbs feels predictable and political. The question now is: Do these justices wish to serve as the Republican Party’s means to an end?

Maybe so. For abortion proponents, the case for pessimism is strong. But the case for caution before forecasting catastrophe can be made as well. The Supreme Court has surprised us before. And Casey’s curious history demonstrates that justices may defy expectations even when the future of reproductive freedom seems bleaker than ever before.

Orignally published on 2021-11-30 17:04:50 by slate.com

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