Whenever the court rules, I think the chief justice will be in the majority. Many conservatives wrongly believe John G. Roberts Jr. to be some sort of replacement for the Sandra Day O’Connor, David Souter or Anthony M. Kennedy triumvirate that drafted Casey — judicial “moderates” who were nominated as conservatives, but who were mostly untethered to originalism. This fear about the chief justice is rooted in the Obamacare decision, in which Roberts sided with four liberals to uphold the law as constitutional based on the government’s power to tax. That remains a moment of judicial restraint of the sort conservatives should applaud: When a statute can be, it ought to be upheld. This deference to elected officials earned Roberts a lot of criticism from the right. Absurd and blind to the chief’s vast body of work, the critiques bounce off him but do not help the court’s reputation.
Roe and Casey should be discarded because they are bad decisions that perverted the Constitution and took us all into the deep polarization we find ourselves in now. When our courts decree, our politics decay. Americans have reorganized themselves into two warring camps, with the right keen to win back the court and thus the debate. The two cases produced a jagged break from the norm that can be healed with steady courage from the six conservative votes on the bench.
Left-wing observers think this will be the ruin of the GOP when it comes to pass. In reality, it will not hurt the party and will instead be the triumph of peaceful politics over raw power. It will remind everyone that states matter, that legislatures matter, that citizens matter.
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