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Wednesday, February 22, 2006 

South Dakota, Abortion, and the Court

South Dakota is about to pass an incredibly sweeping ban on abortions. The proponents of the bill know that it will be immediately challenged in the courts. That's the whole idea.
"I'm convinced that the timing is right for this," said State Representative Roger Hunt, a Republican who has sponsored the bill, noting the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the court.

"The strong possibility of a third appointee sometime soon makes this all very real and very viable," Mr. Hunt added, a reference to conjecture that Justice John Paul Stevens, 85, might soon retire. "I think it will all culminate at the right time."
Now, I'm not a math major or anything, but I only count 4 possible/likely votes to overturn Roe/Casey. In fact, the only two votes that we know for sure are Scalia and Thomas. While it will take a long time for this issue to get to the Court (the Article III world moves at the speed of a comatose sloth), I think that these South Dakota politicians are jumping the gun a bit.

What if there is another vacancy imminent? Does this change what happens on the Court with the upcoming Partial Birth Abortion case? I touched on this issue in this post. Let's say that you are a Supreme Court Justice who wants to overturn Roe. We'll call you Antonin S. No, wait, that's too obvious. Let's call you A. Scalia. There's a pretty good chance that the PBA ban will be upheld in a 5-4 decision. One of those 5 does not want to overturn Roe/Casey. Do you write a concurring opinion that calls for Roe to be overturned? You've done this consistently in the past on principle and haven't been shy about it. Would the presence of this concurring opinion make the other anti-Roe justices feel pressured to sign onto it if they agreed? Would they (the new justices) want to go on record on that, or is it ethical to not sign onto a concurring opinion that you agree with?

I guess this is really a question of tactics. Should a justice write an opinion that will get less than a majority when that opinion will further frustrate those legal goals? Make no mistake. A four vote concurring opinion that calls for the overturning of Roe would turn the next confirmation hearing into Armageddon starring Joe Biden. On the plus side, it would be televised and a hell of a show. I'm very curious to see how this plays out in the next term or two.

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