Published August 30, 2021
It profits a man nothing to gain the world if he loses his soul—and the deal is even worse if the earthly gain is just a chance at the fleeting respect of a few law professors. Nonetheless, that is how the left is hoping to tempt Brett Kavanaugh as the Supreme Court considers a direct challenge to Roe v. Wade.
Writing at National Review Online, Ed Whelan observes that such a sales pitch from Harvard Law professor Noah Feldman “isn’t subtle.” Feldman does not attempt to argue that Roe and subsequent decisions such as Casey are correct as a matter of law and constitutional interpretation. Instead, he resorts to mean girl tactics—only cool justices get to guest lecture at the Ivy League table.
He offers Kavanaugh the approval of the left-wing legal establishment in exchange for voting to preserve the invented constitutional right to abortion on demand. Of course, Feldman cannot promise to deliver on his end of the bargain—he admits the left might still hate Kavanaugh even if Kavanaugh gives in to their demands.
This is just a more personal version of the left’s efforts to intimidate conservative judges, as seen in the recent threats to pack the court. Sometimes these tactics work, as seen in Chief Justice Roberts’ reported switch to save Obamacare, or in Anthony Kennedy’s vote in 1992 to stand by Roe v. Wade. But the consequences of unprincipled political calculation by the court cut both ways.
The justices should do their duty and follow the law and Constitution to the best of their abilities. In the case at hand, this means overturning Roe and Casey, which are legal abominations, exercises of raw power divorced from the text and history of the Constitution. If they do consider additional factors, they should only be further motivated to overturn Roe.
The most important consideration is the wickedness of the radical regime of abortion on demand established by Roe and confirmed by Casey. In the age of ultrasound, we know what abortion is, and who it kills. The images eagerly shared on social media and stuck to the fridge condemn the atrocity of our abortion regime, in which the child whose features can be seen on the screen, and whose movements can be felt in the womb, has less legal protection than livestock.
This acceptance of, and reliance on, the violence of abortion poisons society. It turns what ought to be the loving, primordial union of mother, father, and child into a battleground of selfish interests. Abortion hardens the hearts it doesn’t stop.
Overturning Roe will not in itself end these evils, for the justices are unlikely to extend 14th Amendment protections to the unborn, although there is an originalist case for doing so. Abortion policy would therefore return to the states, leaving the pro-life movement to face a grueling state-by-state fight. But at least our democratic victories will no longer be overridden by the caprice of federal judges.
Roe has damaged our republic and distorted our politics. It is the leading example of the Supreme Court acting as an unelected super-legislature and imposing its will on the nation, and upholding Roe will only further delegitimize the court.
It is not only leftist law professors and legacy media editorial boards who have opinions about these matters, Many Americans long ago realized that the Supreme Court often rules as it wills, not according to the law or Constitution. The justices may hate the ugliness of their confirmation hearings, but the court brought that on itself by becoming the national abortion policy tribunal.
Millions of voters have supported the conservative legal movement on the promise that it would fight to get courts out of the abortion business. Thus, if the Supreme Court, with a 6-3 Republican-appointed majority, voted to uphold Roe and Casey, the decision might well blow up the conservative legal movement for good. Most of the voters who care about the courts are not interested in Chevron deference or other (to a layperson) esoteric legal doctrines. Rather, they want Roe overturned.
Thus, upholding Roe would turbocharge populist critiques of the originalist project and its institutions. Although President Donald Trump picked some of these justices, their failures will not be held against him and other populists, but against the conservative legal establishment Trump relied upon in his selections.
Indeed, if the court stands by Roe it might upend the entire Republican Party, many of whose voters are tired of an establishment that overpromises and underdelivers. The full reckoning is unpredictable, but GOP self-immolation is a real possibility, leading to either Democratic dominance or a triumphant populist GOP (or both in succession). The Republican base will not shrug off another total betrayal.
The Supreme Court might attempt to split the baby and uphold the abortion restrictions at issue in Dobbs without overturning Roe and Casey. The specifics of this case makes that difficult, but there is nothing but their self-respect to keep the justices from trying.
Of course, that would just leave them back in the same place in a few more years. The time for the justices of the Supreme Court to get out of the abortion business is now—for the sake of unborn children, the Supreme Court, the country, and their own souls.
Nathanael Blake is a senior contributor to The Federalist and a postdoctoral fellow at the Ethics and Public Policy Center.