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This Will Hurt You More Than It Hurts Me

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Meryl Woo Rice, right, takes part in an abortion rights protest near the Capitol on the opening day of the second session of the 109th General Assembly, Tuesday, Jan. 13, 2015, in Nashville, Tenn. (AP Photo/Mark Humphrey)

With Brett Kavanaugh given a lifetime appointment, it’s Bad Complacent Contrarian Punditry About Roe O’Clock!

In recent years, the court has sidestepped most abortion cases, allowing lower courts to rule against new restrictions and declining to hear further appeals.

The assumption that increasingly Trumpified circuit courts will just strike down any envelope-pushing abortion law has already been proven howlingly false, as an 8 CA panel has already effectively refused to apply Whole Woman’s Health. As more and more circuits flip Republican, a Supreme Court that does nothing would result in substantially reduced abortion access.

Chief Justice John Roberts shows keen awareness of political currents, and he knows this is nuclear. Far likelier is that the court would allow gradual and less drastic encroachments on access to abortion over the long term.

Again, pundits who see regulations that would result in most or all abortion clinics being shut down as minor shifts rather that de facto reversals of Roe are going to be a major problem in coming years. The fact that Supreme Court decision does not formally overrule Roe doesn’t make it a minor shift.

Even in the worst-case scenario, of Roe being overturned, states would retain the right to make their own laws, and fewer than one in five Americans believe that abortion should be outlawed in all circumstances. Again, though, a ruling that extreme would cause societal upheaval, and it’s unlikely.

Hmm, “these regulations will just affect some poor women in states where I don’t live, so who cares, really?”; “overruling Roe would send the issue back to the states,” “national public opinion surveys will stop state legislatures from restricting abortion” — it’s almost every terrible argument pundits make about Roe crammed into one graf!

What amazes me most is that a pundit could write, in October 2018, that Republicans would never try to do something that does not have the support of national public opinion. Christ, if that was true Kavanaugh wouldn’t be on the Court.

The rest of the column isn’t much better informed:

Alito’s confirmation, wrote author Jan Crawford Greenburg in a 2007 book, would have “repercussions as yet unimagined.”

In a narrow sense, of course, Greenburg’s characterization was true, since unimagined repercussions are inescapable. But the imagined repercussions—such as the overturning of Roe v. Wade—didn’t come to pass. Yes, Alito is hard-right. Many people have hated his rulings, often for good reason. But the court didn’t do a sudden flip. Predictions of a succession of crazy 5–4 decisions dominating our landscape are overblown. Fewer than one in five Supreme Court rulings have such a split. Over a third are unanimous.

Frank does not cite the people who thought that Alito’s conformation — which shifted the median vote on the Court from one justice who voted to re-affirm Roe to another — would result in Roe v. Wade being overruled, presumably because this is his own misunderstanding. It hardly follows that shifting the median vote of the Court to Roberts, who dissented from a 2016 ruling striking down Texas’s draconian TRAP law, would have the same effect as switching from O’Connor to Kennedy.

The last part of the graf is also remarkably beside the point. “Sure, the Roberts Court has completely gutted the Voting Rights Act, but many of its opinions are minor technical cases decided unanimously.” Oh well then!

One just hopes that this “liberals, don’t worry about the Court” punditry will become less and less representative of liberal opinion, not least because this kind of complacency and ignorance helped pave the way for President Trump.

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