“Let yourself go,/ Relax,/ And let yourself go.
Relax,/ You’ve got yourself tied up in a knot.”
I had originally reacted with incredulity about a recent effort to paint Amy Coney Barrett’s nomination to the Supreme Court as largely irrelevant to the fate of Roe v. Wade and constitutional protection for reproductive rights. I drafted a blog entry with the title and epigram above. But I secured publication of my commentary in law.com’s The Recorder here. So, with permission of The Recorder, I present that commentary below.
Reprinted with permission from the Oct. 8, 2020 issue of The Recorder. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited.
Law Professor’s Argument Is No Reason Not to Worry About ‘Roe’
David Cruz, law professor at the University of Southern California Gould School of Law, says a recent op-ed from Stanford’s Michael McConnell is misleading about the security of Roe v. Wade and abortion rights in the nation’s high court with the addition of Judge Amy Coney Barrett.
By David Cruz | October 08, 2020 at 08:00 AM
Conservative law professor Michael McConnell has published an op-ed in the Washington Post essentially telling the nation to take a chill pill about the confirmation of President Donald Trump’s nominee to the Supreme Court of the United States. Replacing liberal Supreme Court Justice Ruth Bader Ginsburg with conservative Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit “would not end abortion rights,” he says. Unfortunately, his argument rests on errors a constitutional law professor at Stanford should not make and is misleading about the security of Roe v. Wade and abortion rights in the Supreme Court after Barrett fills Ginsburg’s seat.
In the op-ed, McConnell tries to reassure the large portion of the American public who approve of women’s constitutional reproductive rights that Roe has not in the past been overruled despite numerous Supreme Court appointments by conservative presidents starting with Ronald Reagan. And according to McConnell, it “will not be lightly overruled” by the court even with Barrett installed. As supporting evidence, he argues: “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.”
Almost everything about this sentence other than John Roberts’ position as chief justice and the president who approved him is wrong or at least misleading.
Start with Roberts’ opinion in June Medical Services v. Russo. In this case from June 2020, the Supreme Court by a 5-4 vote held restrictive Louisiana abortion regulations were unconstitutional. This shows us that Roe is safe, McConnell in effect says, because Roberts wrote the “majority opinion” in June Medical, showing that even judicial conservatives aren’t chomping at the bit to overrule Roe.
This argument that abortion rights will continue to be upheld doesn’t survive elementary math. It takes five votes from the nine justices to form a majority. With Ginsburg on the Supreme Court there were four more liberal Justices, who if they picked up just one vote could achieve more liberal results. With Barrett replacing Ginsburg, that leaves three liberals, who would need two of the more conservative justices to agree on any outcome, such as adhering to Roe and subsequent decisions protecting abortion rights. The fact that the four liberals were joined by Roberts in striking down the law challenged in June Medical does not mean that any of the other conservative Justices would do so—especially since the four on the court were unwilling to do so this summer.
In addition, McConnell grossly oversells Roberts’ position in June Medical. He is flatly incorrect in stating that Roberts wrote the “majority opinion” in the case. As the link in his op-ed to the official Supreme Court opinion makes abundantly clear, Roberts’ opinion in the case was not a “majority” opinion. A majority of nine is five or more, but Roberts’ opinion concurred in the judgment in the case (the outcome, but not the opinion). It was a solo concurrence, expressing only the views of the chief justice. The lead opinion in June Medical was a plurality opinion written by Justice Stephen Breyer for himself and the three other more liberal justices of the court. There simply was no majority opinion in the case, which matters because the court has often treated the lack of a majority opinion as a reason a precedent is more susceptible to overruling.
Some have argued that the holding of June Medical is contained in Roberts’ solo concurring opinion that espouses a much less protective version of doctrine than that applied in the Supreme Court’s Whole Woman’s Health v. Hellerstedt decision on which the more liberal Justices relied. In a case where there is no majority opinion, the Supreme Court has said that the holding should be identified pursuant to Marks v. United States, 430 U.S. 188 (1977), which asks which of the concurring justices offers the narrowest reasoning.
The right way to operationalize the Marks rule has divided scholars and courts alike. And, as professor David Cohen of Drexel University has noted, lower courts are already disagreeing about whether Roberts’ view in June Medical constitutes the holding under Marks. Cohen has cogently argued that even accepting Marks, prior Supreme Court precedent applied by the June Medicalplurality, offering more protection to reproductive rights than Roberts’ concurrence, remains the governing law. If that is true, the loss of Ginsburg from the June Medical majority and her replacement with Barrett could well be enough to tip the balance in a way that matters greatly.
Even without overruling Roe, Whole Woman’s Health, or other precedents protecting abortion rights, however, the Supreme Court could effectively gut them. First, rights can be undermined by narrowing interpretations, increasingly limiting the circumstances under which the rights apply, rather than by outright overruling of precedents. Indeed, Supreme Court justices dissenting from conservative majorities that have upheld abortion restrictions ostensibly under Roe or that case’s “central holding” have decried just such sapping and undermining.
This is a technique quite familiar to Roberts, observable for example in his treatment of precedent formally upholding the preclearance requirement of the federal Voting Rights Act of 1965 but gutting it by striking down that important law’s provision subjecting specific states to the requirement to obtain judicial or Justice Department approval to change their voting laws in his 2013 opinion for the conservative majority (Shelby County v. Holder, 570 U.S. 529 (2013)).
Second, McConnell’s op-ed does not address Roberts’ very narrow basis for voting in June Medical to hold the challenged Louisiana abortion regulations unconstitutional. In my view, with that omission it is highly misleading of McConnell to suggest that Roberts “reaffirmed” Roe. Roberts’ solo concurrence expressly explained that he voted as he did only as a matter of stare decisis, respect for the court’s precedent.
That is very different from voting because you are committed to upholding a precedent. Indeed, Roberts candidly stated in June Medical that he was voting to adhere to Whole Woman’s Health’s protection of abortion rights “in deciding the present case”—not in deciding future abortion rights disputes—because “neither party has asked us to re-assess the constitutional validity” of the prior precedent’s rule. Under Roberts, this court has expressly overruled other precedent dating back to the 1970s, so his vote in June Medical should give scant hope to those wishing the court to continue to interpret the Constitution to protect abortion rights.
As a constitutional scholar at a top law school, McConnell surely knows all this. One can only speculate why he omitted it from his op-ed. Regardless of his motivation, the people of the United States should not be fooled into thinking that the replacement of Ginsburg by Barrett does not dramatically increase the risk to constitutional reproductive rights.
David B. Cruz, Newton Professor of Law at the University of Southern California Gould School of Law, is a constitutional law expert focusing on civil rights and equality issues, including the rights of lesbian, gay, bisexual and transgender persons. He is the co-author (with Jillian Weiss) of Gender Identity and the Law (forthcoming, 2020) (Carolina Academic Press).
