David Savage, in his familiar role as drama queen, drags out the old “THEY’LL OVERTURN ROE!!!” bogeyman in this morning’s L.A. Times:
McCain promised that, if elected, he would follow President Bush’s model in choosing Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
That could establish a large conservative majority on the court for years. With conservatives in full control, the court would probably overturn Roe vs. Wade and the national right to have an abortion. The justices also could give religion a greater role in government and the schools, and block the move toward same-sex marriage.
If elected, Obama would be hard-pressed to create a truly liberal court. But by replacing the aging liberal justices with liberals, he could preserve abortion rights and maintain a strict separation of church and state.
This could easily have been written by a pro-abortion group rather than a “journalist” covering the Supreme Court.
Savage has no basis to predict so confidently that adding another Roberts and Alito “would probably overturn Roe v. Wade.” There are, as we speak, two clear votes for overturning Roe. And Roberts and Alito aren’t either of them.
In the most recent major abortion decision, Gonzales v. Carhart, Justice Thomas wrote a concurrence that stated his opposition to Roe:
I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution.
He was joined by only one Justice: Antonin Scalia. To the disappointment of Roe opponents, Justices Alito and Roberts pointedly refused to sign on to that concurrence.
I’ll give Savage this: Alito and Roberts are clearly not fans of expansive abortion rights. If the Justices are asked to rule on the legaility of new restrictions on abortion — restrictions that have not been ruled upon in previous cases — Alito and Roberts are not likely to be overly eager to strike those restrictions down.
But they have proved themselves to be very respectful of precedent — in ways that have frustrated conservatives on many occasions.
So where does David Savage get the idea that two more Justices like Alito or Roberts “would probably overturn Roe v. Wade”? That makes for a great rallying cry — it would look great, for example, in a NARAL mailer — but it’s not journalism.
It’s also nothing new.
P.S. I love this:
Since Warren’s retirement in 1969, conservatives have been ascendant in the high court, thanks to Republican domination of the White House. For the last three decades, Republican appointees have held at least seven of the Supreme Court’s nine seats.
Since when does “Republican” equal “conservative”? I’ll note that “[s]ince Warren’s retirement in 1969” we have had: Roe v. Wade; the affirmance of Roe in Casey; the death penalty ruled unconstitutional for a period of years; the abolition of the death penalty for juveniles and the mentally retarded, using a patently bogus form of analysis; the Lawrence v. Texas decision; and many others.
How did the Court issue so many non-conservative decisions with so many Republicans? Maybe they’re following the Obama prescription for deciding the big cases: follow your heart. More on that in a separate post.
UPDATE: Thanks to aphrael for pointing out a typo (really more like a disconnnect between the brain and the typing fingers). No, there is no Justice Casey, and yes, I meant Justice Roberts.