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With Roe Revisited, Will SCOTUS Blink Once Again?

Posted on Monday, February 14, 2022
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AMAC Exclusive – By Seamus Brennan

Roe

Since the birth of the modern conservative legal movement in the 1970s, conservatives have suffered a series of bitter disappointments from the federal bench. Time and again, self-branded “originalist” jurists appointed by Republican presidents have “gone native,” succumbing to pressure from left-wing voices in the media and liberal culture and ultimately issuing liberal rulings that are far out of line with both their credentials and an originalist understanding of the Constitution. Now, as the High Court and its newly minted 6-3 Republican-appointed majority prepare to decide major cases on abortion rights, the Second Amendment, religious freedom, and other hot-button issues, many conservatives are anxiously waiting to see if this pattern will continue, or if this might finally be the term where conservative justices refuse to blink.

The examples of conservatives becoming more liberal after reaching the Supreme Court are perhaps too many to count. Former Justices Sandra Day O’Connor and Anthony Kennedy, both appointed by President Ronald Reagan, were two of the deciding votes in the contentious Planned Parenthood v. Casey decision, which to this day upholds Roe v. Wade and the expansive legal right to abortion in the United States. Justice David Souter, who was appointed by President George H. W. Bush for his perceived ability to “interpret the Constitution” rather than “legislate from the federal bench,” also signed onto the majority and co-authored the plurality opinion with O’Connor and Kennedy.

Yet, Casey has long been considered a notorious example of precisely the sort of “legislating from the bench” that figures like Reagan and Bush spoke out so vehemently against. As legal scholar Robert George wrote for First Things magazine last fall, Casey is “grossly unfaithful to the Constitution,” for which it is, along with Roe, “rivaled only by” Dred Scott v. Sandford and Plessy v. Ferguson—which barred black Americans from citizenship and approved state-sanctioned segregation, respectively.

Kennedy also cast the deciding vote in the controversial 2015 case Obergefell v. Hodges, which essentially invented out of whole cloth a nonexistent constitutional right to same-sex marriage that, as Justice Antonin Scalia was quick to note in his fiery dissent, relied upon “the mystical aphorisms of the fortune cookie.”

This pattern of disappointments from Republican-appointed justices perhaps reached its pinnacle with President George W. Bush’s appointment of Chief Justice John Roberts, who famously pledged during his confirmation hearings that he would “decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

Yet, as conservatives are quick to point out, many of Roberts’s decisions are not “based on the record, according to the rule of law,” but rather on his perception of the political temperature and his desire to uphold the so-called “institutional legitimacy” of the Court. For Roberts, this usually means voting with the Court’s liberal bloc—even when doing so violates his stated interpretation of the law.

Roberts’s elevation of the Court’s popularity over the written words of the Constitution became most apparent in the 2012 decision National Federation of Independent Business v. Sebelius, which, in a 5-4 vote, upheld the Affordable Care Act’s individual mandate to buy health insurance. The individual mandate, which Roberts used a series of linguistic gymnastics to configure into a “tax” in order to uphold the Affordable Care Act (which otherwise would have been doomed), is widely recognized to be flagrantly unconstitutional. As constitutional scholar Ilya Shapiro wrote, Roberts “sent Obamacare flying from the constitutional frying pan into the constitutional fire.”

Even President Donald Trump’s three Supreme Court appointees have at times failed to live up to conservatives’ expectations that they would rule on cases independently of political pressure from the left. Justice Neil Gorsuch, for instance, infamously authored the outlandish Bostock v. Clayton County decision, in which he bizarrely wrote “sexual orientation” and “gender identity” into the Civil Rights Act of 1964—even though the law itself made no mention of such characteristics.

Justice Brett Kavanaugh has also occasionally fallen into this trap—even after President Trump and Senate Republicans stood firmly by his side amidst one of the most disgraceful Supreme Court confirmation battles in U.S. history, in which Democrats viciously attempted to kill his nomination by smearing him as an alcoholic serial rapist.

In January, Kavanaugh sided with the Court’s three-member liberal bloc and Chief Justice Roberts to uphold COVID-19 vaccine mandates for healthcare workers, which drew the ire of the very people who fought tooth and nail to ensure his confirmation just a few years prior. Some conservatives have also expressed frustration at Kavanaugh’s and other justices’ failures to grant review to cases that would have evaluated complaints from several state Attorneys General following the 2020 presidential election.

While the left is almost never surprised by the voting records of Democrat-appointed Supreme Court justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan vote almost invariably in lockstep with Democrats’ policy preferences), it has become increasingly clear that the media’s pressure campaign against Republican-appointed justices has sometimes been successful.

On the current Court, the consistent exceptions to this rule are Justices Clarence Thomas and Samuel Alito, who have withstood the ruthless criticism and character assassination attempts from the left. Evidently, other Republican-appointed justices do not wish to subject themselves to the same treatment.

The American people are not the only ones frustrated with this situation. In fact, Justices Thomas, Alito, and even Gorsuch have expressed concerns of their own directly to their colleagues on the bench. In a 2021 dissent, this trio—led by Alito—lamented the Court’s “unwilling[ness]” to bear “criticism” from the public. And in a separate concurrence on a high-profile religious liberty ruling, in which the Court failed to overturn a controversial and likely unconstitutional precedent, the same three justices—this time led by Gorsuch—once again sounded the alarm: “These cases will keep coming until the Court musters the fortitude to supply an answer,” the concurrence read. “Respectfully, it should have done so today.”

As the Court gears up for the end of its term and prepares to release what could be some of the most far-reaching legal decisions in decades, Americans who care about the rule of law, judicial independence, and withstanding the left’s tactics of intimidation should hope the Court can finally, in the words of Justice Gorsuch, muster some fortitude.

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Max
Max
2 years ago

Have lost the faith in the SCOTUS. As the article points the downfall of several issues as well as upcoming issues, their decisions are moving the country further toward socialism. Example, forcing vaccine mandates on health care workers and using OSHA to enforce these mandates, those who have not taken the COVID vaccines will probably be losing their jobs and eventually this country will lose all private health care and socialized medicine will be the norm. Look at the countries that have socialized medicine, IT DOES NOT WORK. Overall, there are several “conservative” members that need to get their act together and do the their job properly, forget the press and pressure, DO WHAT IS RIGHT.

AJB
AJB
2 years ago

Unless and until our politicians are subject to term limits we will never have the Democratic republic our forefathers envisioned nor a SCOTUS that upholds the Constitution or Bill of Rights…

PaulE
PaulE
2 years ago

Rather than endlessly speculate about what the Supreme Court will or won’t do on any specific issue, which is a losing game that we have no say or control over whatsoever, all we can do is wait for the ruling to be issued. If and until the majority of the Supreme Court ever grows a spine to rule based solely on what is written within the four corners of the Constitution on a consistent basis, I see no reason to expect that the Court won’t be swayed by influences that should have NO BEARING on the constitutionality of the matter. Chief Justice Roberts certainly does NOT inspire in confidence in that matter.

Ronnie Black
Ronnie Black
2 years ago

I am still going to vote, but I know only GOD can fix this. Suffer the little children to come unto me.

Robert Collins
Robert Collins
2 years ago

They are all wooziest when it comes to them having the grit to just up hold the Constitution!

Boz
Boz
2 years ago

Roberts will check in with 0bama and 0bama will tell him not to do anything.

Eric377
Eric377
2 years ago

Sorry, while I agree with nearly everything here, the ACA individual mandate actually was structured like a tax, so it never was a question of whether Congress or the President spoke of it as a tax. Congress has the clear power to tax and nowhere do they have a constitutional requirement to talk honestly about it.

Bill T
Bill T
2 years ago

I wonder what they have over Justice ROBERTS head? It’s definitely not good . They literally seam to own him . He’s not a conservative at all . Epstein island? There’s guaranteed something he’s hiding to the entire country.

John W Egan
John W Egan
2 years ago

“Mature”?
I think “Neanderthal” is more appropriate.

Dennis
Dennis
2 years ago

Roberts, Gorsuch and Kavanaugh are born and bred swamp dwellers. What did they expect? Now that they are selecting judges on identity, I will only vote for a president who promises judges not born with 100 miles of Washington DC (and who did not go to an Ivy League law school)

KD SQ
KD SQ
2 years ago

Until our side puts someone on the court, that during hearings, says Roe is made up out of whole cloth and would vote to overturn it we will lose. If we have a real majority of senators, again with backbones, it shouldn’t matter what the press says. These people on the right are cowards if they worry about the left and what they think. They would no more keep those people, voting their way, on the court, even if they voted their way each time. The left is unable to be compromised with and therefore, should never be consulted or listened to on any issue.

Tom Anderson
Tom Anderson
2 years ago

Row was a very good ruling based on the right to privacy. it made a very good balance between the rights of the individual woman and the rights of the state. The fascist right wing that wants to control the uteruses of woman they don’t know needs to mind their own business and focus on taking care of the hundreds of thousands of actual children in the foster system right now.

Lori Ziegler
Lori Ziegler
2 years ago

Roe vs Wade is based on a lie! Right out of the paperback lib playbook.

Max
Max
2 years ago

Have lost the faith in the SCOTUS. As the article points the downfall of several issues as well as upcoming issues, their decisions are moving the country further toward socialism. Example, forcing vaccine mandates on health care workers and using OSHA to enforce these mandates, those who have not taken the COVID vaccines will probably be losing their jobs and eventually this country will lose all private health care and socialized medicine will be the norm. Look at the countries that have socialized medicine, IT DOES NOT WORK. Overall, there are several “conservative” members that need to get their act together and do the their job properly, forget the press and pressure, DO WHAT IS RIGHT.

AJB
AJB
2 years ago

Unless and until our politicians are subject to term limits we will never have the Democratic republic our forefathers envisioned nor a SCOTUS that upholds the Constitution or Bill of Rights…

PaulE
PaulE
2 years ago

Rather than endlessly speculate about what the Supreme Court will or won’t do on any specific issue, which is a losing game that we have no say or control over whatsoever, all we can do is wait for the ruling to be issued. If and until the majority of the Supreme Court ever grows a spine to rule based solely on what is written within the four corners of the Constitution on a consistent basis, I see no reason to expect that the Court won’t be swayed by influences that should have NO BEARING on the constitutionality of the matter. Chief Justice Roberts certainly does NOT inspire in confidence in that matter.

Ronnie Black
Ronnie Black
2 years ago

I am still going to vote, but I know only GOD can fix this. Suffer the little children to come unto me.

Robert Collins
Robert Collins
2 years ago

They are all wooziest when it comes to them having the grit to just up hold the Constitution!

Boz
Boz
2 years ago

Roberts will check in with 0bama and 0bama will tell him not to do anything.

Eric377
Eric377
2 years ago

Sorry, while I agree with nearly everything here, the ACA individual mandate actually was structured like a tax, so it never was a question of whether Congress or the President spoke of it as a tax. Congress has the clear power to tax and nowhere do they have a constitutional requirement to talk honestly about it.

Bill T
Bill T
2 years ago

I wonder what they have over Justice ROBERTS head? It’s definitely not good . They literally seam to own him . He’s not a conservative at all . Epstein island? There’s guaranteed something he’s hiding to the entire country.

John W Egan
John W Egan
2 years ago

“Mature”?
I think “Neanderthal” is more appropriate.

Dennis
Dennis
2 years ago

Roberts, Gorsuch and Kavanaugh are born and bred swamp dwellers. What did they expect? Now that they are selecting judges on identity, I will only vote for a president who promises judges not born with 100 miles of Washington DC (and who did not go to an Ivy League law school)

KD SQ
KD SQ
2 years ago

Until our side puts someone on the court, that during hearings, says Roe is made up out of whole cloth and would vote to overturn it we will lose. If we have a real majority of senators, again with backbones, it shouldn’t matter what the press says. These people on the right are cowards if they worry about the left and what they think. They would no more keep those people, voting their way, on the court, even if they voted their way each time. The left is unable to be compromised with and therefore, should never be consulted or listened to on any issue.

Tom Anderson
Tom Anderson
2 years ago

Row was a very good ruling based on the right to privacy. it made a very good balance between the rights of the individual woman and the rights of the state. The fascist right wing that wants to control the uteruses of woman they don’t know needs to mind their own business and focus on taking care of the hundreds of thousands of actual children in the foster system right now.

Lori Ziegler
Lori Ziegler
2 years ago

Roe vs Wade is based on a lie! Right out of the paperback lib playbook.

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