The Wall Street Journal has just posted online my op-ed titled “John Roberts and the Abortion Precedents” that will appear in its print issue tomorrow, the day of the oral argument in Dobbs v. Jackson Women’s Health Organization. Here is an excerpt from near the beginning:
Roe and Casey have corrupted America’s law and disrupted its politics for decades. Dobbs provides the court an opportunity to end the damage by restoring abortion policy to the democratic processes in the states. Many observers expect Chief Justice John Roberts —wary of overturning precedent and anxious to defend the court from political attacks—to search for a compromise. But his record provides compelling reasons to think he will forge a supermajority of justices to overturn Roe and Casey definitively.
And my closing two paragraphs:
The immediate aftermath of the overruling of Roe might well be messy and contentious. But unless concerns over the court’s legitimacy are mere camouflage for the court’s self-aggrandizement, a sound institutionalism must also respect the legitimacy of the state legislatures that our Constitution leaves with primary authority over abortion policy.
Bereft of meritorious legal arguments, some supporters of Roe have tried to intimidate the justices by threatening to pack the court. Yielding to that threat would politicize the court beyond measure and invite endless bullying. And court-packing is deeply unpopular. The flagrant wrongness of Roe and Casey and the deep discomfort that many Democratic voters have with their party’s radical agenda on abortion make the overturning of Roe an improbable occasion for a blatant attack on the court to succeed. By winning this battle, Chief Justice Roberts would secure his legacy as a champion of the court’s independence from politics.