Guess who may be the last hope for Roe v Wade

Guess who may be the last hope for Roe v Wade
(Saul Loeb/Pool Photo via AP)

Bloomberg published a piece yesterday arguing at some length that the man progressives tried desperately to keep off the Supreme Court may now be their last, best hope for the survival of Roe v Wade. The idea isn’t as crazy as it sounds at first.

The basic argument is that Justices Thomas, Alito, and Gorsuch are probably ready to overturn Roe/Casey. Justice Barrett will probably join them and certainly won’t want to be the deciding vote to preserve Roe. On the other side you have Justices Breyer, Sotomayor and Kagan who will certainly vote to preserve Roe/Casey. They will likely be joined by Chief Justice Roberts meaning we have four votes on each side.

That leaves Justice Kavanaugh as the swing vote, a position which Bloomberg argues may appeal to him because of his past relationship with Justice Kennedy. Becoming the swing vote would make him the deciding factor not just in this one case but in a lot of future decisions.

Kavanaugh, who clerked for Kennedy, remained personally close to him, and observed the path (and power) of the swing justice from a front-row seat…

As the swing justice, he would often have the power to decide the law on his own. He would be able to influence both conservative and liberal justices in a wider range of cases, because they would know they needed him to win the big cases.

Some evidence suggests that Kavanaugh is indeed attracted to the significance and power that comes from the center. His voting record since joining the court is consistent with an aspiration to become the swing justice. One preliminary statistical study already puts  him in the middle for the term that ended in July.

But there’s a hitch in this plan, one which Bloomberg points out could derail the whole thing. Usually when a Supreme Court Justice grows in office (i.e. moves to the left) he gets rewarded for it by progressives in the culture, at law schools and in the media. But would that be possible in Kavanaugh’s case? He’s already been denounced as a gang-rapist and a liar by a lot of people on the left so it’s hard to see much room for warm feelings toward him.

Now consider Kavanaugh’s situation. If he were to save Casey, as Kennedy helped to do, he would encounter opprobrium every bit as strong as Kennedy got from the right. Indeed, it might be worse, since Kennedy was an outsider to the mainstream conservative legal movement, whereas Kavanaugh is an insider’s insider in these circles. For him to betray the cause on abortion would be a devastating blow to the movement.

Yet unlike Kennedy, in order to receive praise and approbation for any turn to the center, Kavanaugh would have to overcome the opprobrium that followed his confirmation process. Liberals would have to find a way to praise Kavanaugh notwithstanding their outrage about his alleged conduct when he was 17 and the way he responded to questioning about the episode during his confirmation hearing.

In short, there’s a huge social downside to swinging left on this particular issue and no comparable social upside on the left because they most judicial activists have already made it clear they hate him with a white-hot passion.

The irony of the situation is that concern about how Kavanaugh might rule on Roe was a major factor driving the opposition to his confirmation. Remember all the Handmaid’s Tale outfits?

He could still be the swing vote to preserve Roe/Casey. Maybe he’ll decide this is his way of proving all of his detractors were wrong about him. Or maybe he’ll think back to how he was treated by the left in front of the entire world and decide there’s no way he can become the swing vote for those folks after all.

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