If they can’t have their way, they want to burn it down.
No New Souters
On abortion, Justice Kavanaugh must meet the moment—and defy the haters.
David H. Souter was nominated (and confirmed) in 1990 to replace liberal lion Justice William Brennan, a stalwart defender of the “living Constitution.” Before that, Souter spent seven years as a justice of New Hampshire’s highest court, during which time his views on contentious constitutional questions were not at all illuminated. Thereafter, he was a judge on the United States Court of Appeals for the First Circuit for a mere six months before he was nominated to the Supreme Court of the United States. Relative to the “controversial” Robert H. Bork, who had been rejected by the Senate in 1987, Souter had essentially no paper trail.
It is astonishing in retrospect to consider that conservatives saw this thin record as features, not bugs, of Souter’s allure. They believed, despite all the evidence, that Souter would “provide the decisive fifth vote for a broad counterrevolution in constitutional law.”
We all know how that turned out.
Just two years after joining the court, Justice Souter was part of the 5-4 majority in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)—specifically the three-justice plurality, all of whom were Republican appointees—which reaffirmed the “core holding” of Roe v. Wade (1973). By the end of Souter’s tenure, the rallying cry from the Right was “No More Souters!”
Three decades later, the right to abortion is once again at issue.
The court will hear arguments on December 1, 2021 in a major abortion case, Dobbs v. Jackson Women’s Health Organization, and it will issue a decision the following June, just as it did in Casey. Now as then, Republican-appointed justices comprise a supermajority of the Court: 8-1 in 1992, 6-3 now. Now as then, whether to uphold Roe is squarely presented. Now as then, its fate rests in the hands of one robed man—Justice Brett M. Kavanaugh.
There is cause for alarm.
Mark Twain was right: “History doesn’t repeat itself, but it often rhymes.” And where it should deviate is in the Right’s response to Roe’s survival.
If Roe—or some Casey-esque, mutilated-but-still-standing version of it—emerges from the halls of 1 First Street in June, the “conservative legal movement” must be repudiated, so that something serious and effective can grow amidst the ruins of its broken promises.
As Josh Blackman, a law professor at South Texas College of Law Houston, recently explained, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch (the “Thomas 3”) have criticized their colleagues, Justices Kavanaugh and Amy Coney Barrett, for lacking the “fortitude” to overrule controversial precedent in a religious liberty case. “The conservatives implied a similar fissure in several other cases,” Blackman observed.
The “Thomas 3” will likely be solid in Dobbs, despite Gorsuch’s opinion in Bostock v. Clayton County, Georgia (2020). In an abortion case last year, Gorsuch noted that “the real question” before the court “concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.” And he has otherwise been a solid vote on abortion ever since his elevation to the court.
It is highly likely that Chief Justice John G. Roberts, by contrast, will rule wrongly in Dobbs. No morally serious person who understands the nature of courage thinks that Roberts has, since his confirmation to the court in 2005, been “keeping his powder dry” or “building up his political capital” with the intention of overruling Roe.
The Chief Justice refused to stick to his own abortion positions. In June Medical Services LLC v. Russo (2020), a case about whether abortionists could be legally required to have admitting privileges at local hospitals that was materially similar to Whole Women’s Health v. Hellerstedt (2016), he wrote, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”
Roberts also joined the pro-abortion liberal bloc in the Texas abortion case, which came before the court in an emergency posture in September 2021. In dissent, joined by Justices Stephen Breyer and Elena Kagan, he complained that Texas’ statutory scheme—which is actually effective at preventing the killing of the unborn—is “unprecedented.” He concluded by stating that he would “preclude enforcement” of the law until the courts could weigh in.
These incidents are telling. Roberts will not emerge as a hero in Dobbs. Courage is a habit, built up over time. If Roberts ever had that muscle, it has long since atrophied.
And so, the solid “Roe 3” increases to four.
The case of Justice Amy “the dogma lives loudly within you” Barrett is quite different from that of the Chief; it’s hard to imagine her going soft in Dobbs. That means the vote is 4-4, and the outcome hinges on Justice Kavanaugh.
Justice Kavanaugh must not let the siren song of “History,” the media’s hair-on-fire hyperventilating, threats to “pack” the court, or the legal academy’s pleas (when it’s not snubbing him) lure him into affirming Roe. There is absolutely no legal, let alone moral, justification for it. (No, not even stare decisis.)
I can’t profess to understand why Justice Kavanaugh appears to crave acceptance by the elites. His nightmarish confirmation process should have spurred him to make it his life’s mission to make the political Left miserable.
Instead, he’s chosen to virtue-signal. He’s praised DREAMers (even as he’d rule against them), metaphorically linked arms with Jews who supposedly experience “distress and alienation” by having to drive past a big cross, lamely suggested that state officials might save a grandfather-murderer from the just consequences of his actions, and sent weird love notes to the “LGBT community.”
It’s time to end Roe’s sordid half-century of mass-produced death, which, according to the Alabama legislature, dwarfs the slaughter of the Holocaust, the Chinese purges, Stalin’s gulags, the Cambodian killing fields, and the Rwandan genocide combined. The court must no longer be stained red by the blood of nearly 60 million babies.
It falls to Justice Kavanaugh to accomplish this.
If he doesn’t vote to overturn Roe, if he flinches at the critical moment, the righteous fury of half the country will be unleashed, and a generation of young conservatives will be irrevocably radicalized. Justly aghast at a regime that doesn’t just tolerate but celebrates—in the name of “liberty”—a rolling massacre that would make King Herod green with envy, they will ensure that Justice Kavanaugh—if he rules wrongly—will be remembered far more foully than David Souter.
Do the right thing, Justice Kavanaugh. End this national nightmare. You’ll be a hero to the people who matter if you do.
The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.