The “Let’s Pretend Brett Kavanaugh Won’t Overrule Roe” Kabuki

Trump-supporting opponent of reproductive Susan Collins has announced that she will vote to overrule Roe v. Wade, and is running of the oldest cons in the Republican playbook to obfuscate it:

Not at all: The opponents of legal abortion who supported Trump and Kavanaugh know exactly what they’re doing and what they’re getting in Kavanaugh. Neither he nor Roberts supports the maintenance of Roe v. Wade, and Collins is grossly misleading her constituents.

First of all, Roberts’s claim, now echoed by Kavanaugh, that Roe was settled precedent is technically true, but not very meaningful. Roberts also correctly observed that the Court is not always bound by its own precedents, and the criteria he outlined for deciding when overruling a precedent is appropriate did not rule out the overruling of Roe.

And, at his confirmation hearings, Justice Samuel Alito said similar things to Roberts, asserting that Roe was a precedent entitled to “respect” but stopping well short of saying that it shouldn’t be overruled.
To say that Roe is an important precedent, or even a “settled” precedent, is merely stating a truism that does not in itself tell us anything about how a Supreme Court justice will rule on that precedent. What matters more than Roberts’s or Kavanuagh’s words are their actions, and they suggest that pro-life groups are right to be thrilled with the nomination of Kavanaugh if he agrees with them.

Roberts, in practice, does not oppose overruling long-settled precedents. In fact, to find Roberts voting to overrule a longstanding precedent, you would only have to go back to the last day in which the Supreme Court announced its 2018 rulings. The day, when Anthony Kennedy announced his resignation, paving the way for Kavanaugh, Roberts joined a bare majority of the Court to overrule a 40-year-old precedent allowing unions to collect dues from workers who are not members of the union but benefit from the actions taken on their behalf.

Was that an aberration? Not at all. In 2013, the Chief Justice was the author of a shoddily-written opinion overruling a nearly 50-year-old precedent, striking down the most important provision of the Voting Rights Act (which had been re-authorized by overwhelming congressional majorities less than a decade before). And there are plenty of other examples of Roberts joining opinions that explicitly or effectively overrule so-called “settled” precedents.

Roberts’s record is clear: If there’s a clash between “settled” precedent and an important Republican political priority, you can bet on him siding with the latter. And Brett Kavanaugh will seemingly follow a similar logic.

Roberts’s record on abortion also makes his hostility to Roe – and willingness to overrule precedents – plain. Very soon after they were confirmed, both he and Alito voted to uphold a federal ban on so-called “partial-birth” abortion, despite the Court having struck down a nearly identical ban less than a decade before.

Even more crucially, in the 2016 case Whole Woman’s Health v. Hellerstedt,Roberts and Alito dissented from the majority opinion that struck down a Texas law which would have forced a majority of the state’s already relatively small number of abortion clinics to close — even though the state provided no evidence that they were in any way unsafe for women.

As the Texas case illustrates, the most important question is not whether the Supreme Court will immediately and explicitly announce that Roe v. Wade is overruled — though claiming it is “settled” is no kind of guarantee. States have the regulatory tools to eliminate access to abortion without making abortion actually illegal. Kavanaugh, like Court’s other Republican nominees, will likely never vote to strike down an onerous abortion regulation, which will leave women in many states with severely limited access to abortion care — if they have any access at all.

When the Court upholds legislation that prevents any abortion clinic from operating in a state, or if it allows states to require that women translate “War and Peace” from the original Russian in its entirety before they can obtain an abortion (or whatever other new innovation in abortion-stymieing regulation state legislators come up with), overruling Roe is beside the point — but that’s not to say Kavanaugh wouldn’t unsettle the precedent anyway.

I don’t think Collins is dumb; I think she’s lying. But ultimately it doesn’t matter. Kavanaugh will be the 5th vote to overrule Roe: that’s why he was nominated, and it’s one of the most important reasons Republicans have stood by Donald Trump. And whether Roe is overruled explicitly or sub silentio isn’t the important question.