I may be in the minority here, but I still am holding out hope that Chief Justice Roberts joins Justices Stevens, Souter, Ginsburg, and Breyer (and maybe Kennedy?) in striking down the federal “partial birth abortion” statute. Ever since he stressed at his confirmation hearings that he favored a “modest” jurisprudence, I’ve held out hope that he would not necessarily agree with 2000’s Stenberg v. Carhart, but that he would see the damage to the Court’s integrity that overturning it just seven years later would do. Reversing a decision in such a highly politicized area would certainly not be a modest act for the Chief.
After Roberts did nothing to instill optimism at oral argument on the case last week, Dan Markel’s summary of the Chief’s appearance at the University of Miami yesterday is rekindling my hope. The Chief extolled a Court that takes small steps while decrying boldness in the judiciary. Overturning a precedent in this area of the law would certainly be bold and not a small step. Even if Markel’s characterization of the Chief as minimalist isn’t right and instead Roberts is more interested in the integrity of the Court regardless of minimalism, I’m still hopeful. Changing the outcome of a case just a few years later merely because the membership of the Court has changed does nothing to further the integrity of the court.
I’m hardly saying that the Chief is a shoo-in for striking down the federal law and upholding Stenberg, but I think there’s good reason to think he could still be the fifth vote . . . if only for reasons of minimalism or institutional integrity.
– David S. Cohen