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Legal Commentary

: Balkinization

"Freedom's Just Another Word for Nothin' Left to Lose"

By Jack M. Balkin

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George Packer's article in the New Yorker on "The Fall of Conservatism" reports that "most" of the younger conservatives he spoke with "predicted that Republicans will lose the Presidency this year and suffer a rout in Congress."  He quotes Republican strategist Ed Rollins:  "Today, if you're not rich or Southern or born again, the chances of your being a Republican are not great."

Suppose these predictions and analyses are correct.  What are the implications for the Supreme Court and especially for the continued vitality of Roe v. Wade?

One answer is suggested by the title of this post.  A common intuition, sometimes voiced, is that a conservative-dominated Supreme Court hasn't overruled Roe because the Court's conservatives knew that doing so would be a disaster for the Republican Party, splitting the party's coalition and reducing its attractiveness to moderates and independents who agreed with Roe's "core holding," as the joint opinion in Planned Parenthood put it.  (I should add that the mechanisms by which the justices knew and acted on this political analysis have always been a bit mysterious.  Probably the mechanism is that a sense of the political background affects the degree to which one or more justices think that some constitutional position is more sensible than the alternatives.)

But what if the coalition has already been split, and the Republican Party has already suffered a political disaster?  There's nothing left to hold the Court's conservatives back.  Indeed, the prospect of a long run of Democratic appointments to the Court -- true, the initial appointments to the Court are likely to be replacements for some of the liberals on the Court today, but that can't last forever -- gives the conservatives reasons to take their best shot sooner rather than later.  Elsewhere I've called this the "shoot the moon" strategy -- perhaps a high risk strategy, but with a better payoff if it succeeds than alternatives, and in the face of unattractive alternatives anyway.

Roe may therefore be "at stake" in this fall's elections, but no matter who wins maybe it's going to be more vulnerable after the election than before.

Full post as published by Balkinization on May 26, 2008 (boomark / email).

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