My read on today’s oral argument is, if anything, even darker than Paul’s. I think it is essentially certain that Roe v. Wade will be explicitly overruled. The key here is that the decisive votes seem to have abandoned Roberts’s slow-strangulation approach, and instead are trying to sell overruling Roe but not reading the 14th Amendment to require all states to ban abortion as the (LOL) “moderate” position:
This is a ridiculous question from Kavanaugh. No one thinks Mississippi is arguing that the Supreme Court must mandate abortion bans.
Kavanaugh is moving the Overton Window. He’s telling the public: “We won’t force states to allow abortion OR ban abortion—we’re so moderate!” pic.twitter.com/B5NPfa3Xd6— Mark Joseph Stern (@mjs_DC) December 1, 2021
This question from Amy Coney Barrett is basically game over for Roe. She says: Now that all 50 states have “safe haven” laws that let women relinquish parental rights after birth, the burdens of parenthood discussed in Roe and Casey are irrelevant, and the decisions are obsolete. pic.twitter.com/omyhGISVmN— Mark Joseph Stern (@mjs_DC) December 1, 2021
Two things have made Roberts’s fake-minimalist approach untenable. First, younger FedSoc drones like Kavanaugh and Barrett really hate Roe and just don’t care about the backlash the way Roberts does. And, second, states are moving so aggressively that a “reinterpretation” of Casey that moved the line at which bans are unconstitutional back to an earlier stage of the pregnancy wouldn’t survive for more than a year or two; the Court would have to face a total ban within a year or two and decide the Roe question anyway.
The idea that the Court will have actually showed Remarkable Restraint and Statesmanship by “leaving the issue to the states [until the next Republican federal trifecta whoops I said the quiet part loud]” rather than mandating a national ban is absurd. But in a media environment where “Brett Kavanaugh drives a hell of a car pool” is considered relevant information for readers, I wouldn’t against it getting some traction, not least among the elite liberal lawyers who think maintaining their illusions about the Court is more important than maintaining people’s rights.