The second point is more problematic for conservatives. Roe is not a one-off. It was a dramatic but foreseeable progression in the Court’s oxymoronic “substantive due process” jurisprudence of the “mystery of human life” realm of “personhood.” The modern phase started with contraception (first rationalized by a theory of marital privacy, then, in fine make-it-up-as-we-go-along contradiction, extended by a conception of equality). It has since moved on to gay rights (including same-sex marriage, endorsed in Justice Kennedy’s Obergefell opinion in 2015), and now we are on to LGBTQ rights, three-partner marriage (and why stop at three?), and who knows what other transgressive erosions of bourgeois culture.
Regardless of a jurist’s legal position on substantive due process, or of the jurist’s moral or policy positions on what it has wrought, Roe is part of a doctrinal edifice. To reach out and try to overrule it, particularly in a case in which it is not necessary to do so, would be seen as an attack on the entire edifice. The Supreme Court is not going to take that on. A more conservative Court would reject the promiscuous language of Justice Kennedy’s “liberty” musings and admonish that the polling station, not the courthouse, is the place for working out most clashes between the individual and society. It is not going to turn back the cultural clock.
That is for us to do, or not. What we need from judges is to remember that our law is a reflection of who we are, not a tool to shape us into something else. What we need from confirmation hearings is to ensure that we get judges of that kind.