John Roberts’ defection spells trouble for overturning Roe. What should pro-lifers do about it?


In brief, get involved.

As pro-life leaders have been saying, the Supreme Court’s decision to uphold ObamaCare was a clear-cut loss for the Constitution, religious liberty, and the right to life.

Though Chief Justice John Roberts’ majority opinion affirmed that the Commerce Clause doesn’t justify the individual mandate, the Court basically ruled that the federal government can violate the Commerce Clause anyway, as long as it call its enforcement mechanism a tax rather than a penalty – never mind the pesky little details about Congress expressly making it not a tax, Barack Obama himself strenuously denying that it was a tax, and even the Court’s own judgment that it wasn’t a tax for the purpose of ruling on a different part of the case. This ruling was judicial activism of the worst order.

The Becket Fund for Religious Liberty notes that the case did not address the constitutionality of the HHS birth control mandate, and Becket expresses optimism about the group’s separate, ongoing lawsuit on that front. But pro-lifers need to understand that this was a very bad omen for any life-related cases the Supreme Court hears in the future.

The HHS mandate case could still go our way – wild-card Justice Anthony Kennedy stands revealed as a foe of ObamaCare’s logic – but Roberts has made it clear that the Constitution’s meaning isn’t the primary animating force behind his jurisprudence. He allows legally irrelevant factors to cloud his judgment, with some speculating that he was trying to craft an image of Supreme Court bipartisanship and others wondering if he caved to the drumbeat of elite liberal criticism. Either way, Roberts is not the originalist he assured the Senate he was in 2005.

The prospects for Roe v. Wade’s overturn seem even worse. As we’ve discussed before, Roberts has shown signs that he would give excessive deference to Roe’s status as “precedent,” and he rejected the opportunity to call for Roe’s overturn in Gonzales v. Carhart. Yes, he once coauthored a brief against Roe as Deputy Solicitor General, but as Ann Coulter points out, he distanced himself from that brief just three years later, in a law review article footnote:

In the interest of full disclosure, the author would like to point out that as Deputy Solicitor General for a portion of the 1992-’93 term, he was involved in many of the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United States.

If it’s true that Roberts’ decisions are susceptible to media pressure and perception considerations, then it’s hard to imagine that the combination of that weakness and his pro-Roe dispositions could ever let him stand up to the firestorm of indignation and fear-mongering a serious threat to Roe would certainly bring. (And, of course, Kennedy would likely revert to his old antagonistic role, considering that he voted to reaffirm Roe in Planned Parenthood v. Casey.)

If the Supreme Court under its current makeup were to hear a challenge to Roe, Roe would win. A minimum of two liberal justices must be replaced before life would stand a chance.

Pro-lifers have to seriously examine our options. First, the George W. Bush-appointed Roberts proves that the promise of a Republican president isn’t good enough, so we’ll have to ensure that we thoroughly scrutinize every judge a President Mitt Romney might nominate, and vigorously express whatever objections we may have.

Second, the Constitution gives us several mechanisms for checking the judiciary’s missteps – Article III gives Congress the power to place some limits on court jurisdiction; Article II, Section 4 gives Congress the power to impeach “all civil officers of the United States”; and constitutional amendments could limit judges’ terms of office or subject their decisions to some sort of legislative review. Each of these proposals has advantages and disadvantages that would have to be explored fully before enacting them, but it’s well past time to begin the conversation.

Third, we must continue to build support for sidestepping the judiciary completely by ratifying a federal Human Life Amendment. Just as the Thirteenth Amendment banned slavery and the Fourteenth Amendment proclaimed the equal rights of everyone born or naturalized in the United States, there’s no reason why we shouldn’t recognize the right to life of all human beings from fertilization onward in the heart of American law.

With their flowing black robes and lifetime offices, it’s easy to forget that the judiciary is but one of three coequal branches of government, and that the people retain the last word over all of them. It’s high time we reminded Washington of that fact.

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