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Heller is Not Roe: A Word About Political Coalitions and Supreme Court Appointments

By Jack M. Balkin

Over at Convictions, David Barron argues that the eagerness of conservatives to uphold gun rights shows that they are also eager to overturn Roe, despite the damage this would do to the Republican party.

As one of the leading purveyors of the claim that the Court will chip away at Roe without overruling it, I respectfully suggest that David's logic is flawed.

The issue is not anger but the preservation of political coalitions, and it is not about the motivations of the sitting Justices but the motivations of the people who chose which Justices to appoint. Keeping Roe on the books keeps the Republican coalition together; getting rid of Roe rends it asunder. That is why the Republican Party now has a reverse litmus test for Justices. Deciding Heller in favor of gun rights, by contrast, does not split the Republican coalition. Therefore there is no reason for Republican Presidents to appoint Justices who will reject Second Amendment claims.

I continue to predict that Roe will be hollowed out in cases like Carhart without being officially overruled.

Full post as published by Balkinization on March 20, 2008 (boomark / email).