Supreme Court Predictions

Stuart Taylor has an interesting article on Supreme Court predictions in the National Journal. He doesn't see a dramatic shift rightward happening:

Abortion. The Roberts Court has already voted in a big abortion case, on the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. But we probably won't know who won until June.

Pro-choicers noisily fear, and pro-lifers hope, that the Court will uphold this congressional ban on a late-term abortion procedure likened by critics to infanticide because the fetus is destroyed when mostly outside the womb. In the process, many predict, the justices will overrule a major 2000 decision striking down a very similar Nebraska ban. O'Connor was the fifth vote then. Alito is now, and this will be the first salvo in a conservative assault on Roe v. Wade.

My predictions are different: The Court will indeed uphold the federal "partial-birth" ban -- thanks to the Alito-O'Connor swap -- but only by construing it so narrowly that it will have very little effect. And the Court will never overrule Roe v. Wade.

Specifically, the justices will limit the federal ban to "D&X," or dilation and extraction, abortions, the most grisly late-term procedure, and exempt "D&E," or dilation and evacuation, abortions, which are much more common. The Court may also carve out an exception to the ban for those exceedingly rare cases in which more than a few medical experts consider D&X safer than D&E. The justices will narrow but stop short of overruling the 2000 Nebraska decision.

During the argument on this case, Roberts seemed to be pushing for a narrow interpretation of the federal ban. Such a split-the-difference approach might appeal to the conflicted Kennedy; he is the fifth pro-Roe vote, but he wanted to uphold the Nebraska "partial-birth" ban. In future cases, the justices will narrow Roe v. Wade (as they started doing in 1992) but strike down any state laws making it difficult for most women to get abortions.

I am an unashamed Supreme Court watcher. I actually just finished a book that I highly recommend by Jeffrey Rosen about the effects of judicial temperament on Supreme Court history. He is saying something similar -- that while Alito and Roberts may be ideologically more similar to Scalia and Thomas they are not in and of themselves particularly ideological. This is likely to result in more moderate opinions over the long-term.

I guess I am inclined to agree, but I am not certain that such predictions can be reasonably made. The high court changes people often in totally unpredictable ways.

Read the whole thing. It's interesting stuff.


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