Tempering expectations about a Justice Barrett

Michael McConnell, the distinguished conservative Stanford law professor and former judge, urges folks to calm down about Amy Coney Barrett. His column appears in the Washington Post, and thus, I assume, the folks he mainly wants to reassure are D.C. area liberals.

I don’t know whether McConnell will succeed in calming liberals down, but for some conservatives his column will feel like a cold shower.

McConnell focuses on a Justice Barrett’s likely impact in two high profile areas of the law — Obamacare and abortion. These were the two areas that Joe Biden focused on, in that order, during the portion of last night’s debate that dealt with Barrett and the Supreme Court.

McConnell finds “far-fetched” the notion that Barrett’s appointment would mean the invalidation of Obamacare. It’s true that the Supreme Court will soon hear a case challenging the Act’s constitutionality. But McConnell says there’s little chance of that challenge gaining anywhere close to five Supreme Court votes. I think he’s right.

On abortion, McConnell argues that Roe v. Wade is sufficiently resilient to survive even with Barrett on the Court:

In confirmation battles going back to the 1980s, abortion rights advocates have predicted that every nominee by a Republican president, if confirmed, would mean the reversal of Roe v. Wade. Yet it has never happened. Republican presidents have filled nine seats since Ronald Reagan was elected president; nine times the nation was warned that Roe was on the chopping block. Somehow, the blade never falls. Roe was reaffirmed this summer, in effect, by June Medical, with a majority opinion written by Chief Justice John G. Roberts Jr., an appointee of President George W. Bush. Roe is the Road Runner of all precedents. Wile E. Coyote just never catches up.

There are reasons Roe is so resilient — and one of them is not the legal persuasiveness of the opinion, which is nil. But the ruling is nearly a half-century old and has been reaffirmed multiple times by justices of both parties. Such a decision will not be lightly overruled. And whatever one may think of abortion, the practice is so widespread and ingrained, and the right to it so intensely defended by a significant minority of Americans, that trying to use the force of the state to end it would wrench the nation apart — while almost surely failing.

Again, I think McConnell is probably right. The political fallout of overturning Roe v. Wade will likely dissuade at least two conservative Justices from joining their more conservative colleagues in taking that big step. However, that outcome is hardly certain.

The good news for conservatives is that the Supreme Court will decide a great many consequential cases in which Obamacare is not the issue and Roe v. Wade isn’t being attacked. The addition of Barrett would likely make the difference in a fair number of those cases.

Thus, as McConnell acknowledges in his final paragraph, her nomination matters. In fact, it matters a great deal — assuming the Democrats don’t negate her appointment and that of other recent additions by packing the Supreme Court, if they are in a position to do so.

I suspect that McConnell’s column is, in part, an attempt to persuade congressional Democrats not to pack the Court. He assures Democrats that, if they win the upcoming election, they will have a good shot at changing the Court’s direction without packing it. He notes that Justices Thomas and Alito are in their 70s (fortunately, 70 is the new 60 for many Americans) and that if Justice Breyer, who is 82, retires, the Dems could replace him with a jurist to his left.

I doubt that many Dems will take comfort from this line of argument. However, if just a small number of Senate Democrats from non-blue states are influenced by it, maybe Court packing will be a non-starter even if the Democrats win the presidency and control of the Senate.

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