Thanks to former Democratic Majority Leader Sen. Harry Reid and current Majority Leader Sen. Mitch McConnell, Judge Kavanaugh or another jurist who shares his conservative views will receive the 51 votes necessary to be confirmed to serve on the Supreme Court, providing a critical fifth conservative vote. Reid invoked the so-called nuclear option, permitting the Senate to confirm presidential appointments, including federal judges, with a simple majority vote. McConnell extended the nuclear option to include Supreme Court nominees.
On many issues that reflect the great cultural and political divide in 21st century America, including abortion, the Supreme Court has often split 5-4, making a fifth conservative vote a cause for rejoicing on the part of conservatives who believe that the addition of a fifth justice will result in the overruling of Roe v. Wade, a 1973 Supreme Court decision legalizing abortion of unborn children. The progressive left, on the other hand, is apoplectic at the thought of the addition of a fifth conservative justice and the possible overruling of Roe v. Wade, which has protected a woman’s right to choose abortion for a generation.
Appointment of a conservative to the court does not necessarily translate into the overruling of Roe, however, because justices take precedent very seriously. They see precedent as the bulwark of the rule of law. If a court may overrule a long line of precedent, all precedent is placed in jeopardy, making the court little more than another political body. Roe’s central decision has been repeatedly affirmed for more than a generation.
Solicitor General Rex Lee, the Reagan administration’s chief advocate before the Supreme Court, understood that reversing a single case, as incorrectly decided, was much less problematic, as a matter of precedent, than reversing a long line of cases, solidifying a given precedent. Recognizing that the court needed a fifth conservative justice to overrule Roe, he pled with the attorney general and President Reagan to decline to bring any cases involving abortion before the Supreme Court until they had the requisite five votes to overrule Roe. Under intense pressure from pro-life interest groups, who needed the administration to bring cases to keep their fundraising base energized, the administration ignored its solicitor general’s advice. It insisted on continuing to bring cases, each of which the administration lost, thereby strengthening the underlying precedent in Roe.
Lee proved to be prophetic. By 1992, with the appointment of Justice Clarence Thomas, the Supreme Court finally included five conservative justices, each of which was inclined to overrule Roe_._ To the surprise of many, however, in Planned Parenthood v. Casey, the five votes necessary to overrule Roe did not materialize. Justice O’Connor, a likely vote to overrule Roe, wrote the decisive plurality opinion, joined by Justices Kennedy and Souter_._ In her opinion, Justice O’Connor declared, “The sum of the precedential inquiry to this point shoes Roe’s underpinnings unweakened in any way affecting its central holding.” O’Connor added, “An entire generation has come to age free to assume Roe’s concept of liberty in defining the capacity of women … to make reproductive decisions.” She, and those who joined with her, were left to begin the slow erosion of Roe’s “central holding.”
For similar reasons, it is unlikely that the addition of a fifth strong conservative vote will result in an outright reversal of Roe. Justices respect the rule of law too much. The five conservative justices can, nevertheless, do something revolutionary — they may continue to recognize a woman’s right of privacy while changing the interest in life of the unborn to a right.
No court, including the Supreme Court, has ever recognized a right to life — they have only recognized an interest in life. They have, however, consistently recognized a woman’s right of privacy, permitting a pregnant woman to choose an abortion. A right must be enforced by government, whereas an interest is something state or federal governments may enforce. Governments may, therefore, permit women to obtain abortions in virtually any context, but they can limit the right only in very limited circumstances.
It is likely that the conservatives will erode Roe by permitting the government to assert the interests of the unborn. The conservative majority might, however, do something revolutionary. It could uphold the rule of law by continuing to recognize the central holding in Roe — a woman’s right of choice — while converting the interest in the life of the unborn into a right. The court would then have to balance two rights — the woman’s right of privacy and the right to life. The right to life would generally be the stronger of the rights, except when the woman’s life is in jeopardy or possibly in instances of rape or incest.