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Wednesday, April 18, 2007 

Why the Concurrence Says More than the Majority

I know that many people will think that my title is wrong (especially right now in the hours after the decision was handed down), but I think that the Thomas concurring opinion in Carhart & Planned Parenthood is much more important than the majority opinion. "Steve," you say, "Are you daft? This is the biggest abortion decision in years. It's one of the first major victories for the anti-abortion side." Sure, it's an important decision. I think that it will have huge political implications. Every presidential candidate has made their views on the case clear within hours of it being handed down. But there is much more going on in this case than the case itself.

What is so important about the Thomas concurrence? Well, let's look at it...

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring.


I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (SCALIA, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980-983 (2000) (THOMAS, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (THOMAS, J., concurring).

That's all of it. Those four sentences say more about the Roberts Court and the future of abortion jurisprudence than the previous 39 pages of Justice Kennedy's majority opinion. Let's go through it line by line. First sentence...

I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).
Nothing controversial here, just a simple concurrence introductory sentence. It says, "Good job, Tony. You applied Casey correctly."

Second sentence...
I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. [citations omitted]
This is no surprise from Thomas. Both he and Justice Scalia add this statement to every abortion opinion that they write. They are making it clear that there is no right to an abortion in the Constitution.

Third and fourth sentences...
I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
Ah, the Commerce Clause issue. Thomas is hinting that there may be a constitutional problem with the federal PBA ban. You may remember the mini-revival of federalism principles during the Rehnquist Court. Five members of the Court put restrictions on Congressional power to enact laws under the Commerce Clause of the Constitution. Is Thomas hinting that he would've gone the other way if the parties raised the issue?

Thomas' Commerce Clause statements are interesting, but there's something more interesting going on here. What's missing from this concurrence? Roberts and Alito. They didn't sign on to this opinion. The question is: why? What about it made them not join? I think that there are a few possibilities:

1. Roberts and Alito will not vote to overturn Roe/Casey. It's one thing to take a different view in this case and depart from what the Court did a few years ago in Stenberg v Carhart (the state PBA ban case). It's another thing to upset decades of abortion jurisprudence and throw it all out the window. Many Justices believe that the longer a case is on the books, the greater the burden to overturn it. Roberts and Alito made statements similar to this during their confirmation hearings. The late Chief Justice Rehnquist changed his position on Miranda after voting against it originally. It happens. Perhaps Roberts and Alito think that Roe/Casey are too entrenched to overturn.

2. Roberts and Alito did not agree that there was a Commerce Clause problem with the PBA ban. Congress inserted a jurisdictional clause in the statute that explicitly stated that the law only applied to "partial-birth" abortions that are conducted "in or affecting interstate or foreign commerce." My memory of the post-Lopez Gun-Free School Zones Act is a bit fuzzy, but didn't Congress pass the law again (after being struck down on Commerce Clause grounds) and insert a similar jurisdictional clause into the new version?

3. Roberts and Alito do not want to show their hand on the constitutionality of abortion. The political fall out from this decision is going to be huge as it is. Imagine what would happen if there were four solid votes on the Court to overturn Roe/Casey. Then imagine that Bush or another Republican president got to appoint the next Justice. The battle over that nomination would be like nothing we've ever seen. Tactically, if Roberts and Alito wanted to see Roe/Casey overturned, they would stay stealth for as long as possible. Very Machiavellian.

4. Roberts and Alito did not want to alienate Kennedy. We all know that Justice Kennedy can be a sensitive guy. Imagine how it would look for him to be writing for a 5-vote majority where everyone else joined another opinion. And this other opinion would go much, much further than Kennedy's. It's not good internal politics to leave Kennedy hanging out there on his own. With the current make up of the Court, Kennedy is the swing Justice and the one to woo. Roberts and Alito might be making a play for his vote, just like Justice Stevens did in the greenhouse gas case.

The concurrence is full of questions, and I don't have any of the answers for them. I don't know when we will know the answers to those questions either. That's up to Roberts and Alito.

I think 3 and 4 are the more likely reasons. As a matter of fact, I was hoping Alito and Roberts would not join the Thomas concurrence.

Bush did a good job with these 2 choices. I think we got 2 solid conservatives who know how the game is played, and what must be done to win.

For them to join the concurrence would have achieved nothing for us in the way of winning the ultimate war on this issue. It would have only politicized the judicial confirmation process futher (if that is possible). Right now we can claim that there are only 2 known votes on the high court to overrule Roe and Casey.

Of course joining the concurrence would have gone a long way to silencing the akeptics who still think (I believe mistakenly) that Roberts is another Souter. But with the passage of time they will shut up and find someone else on our side to eat alive.

While I was in law school I was constantly amazed at what a delicate balance there has been on the SCOTUS for the last 10 to 15 years. This was before Roberts and Alito, but after Breyer. While studying conlaw I remember thinking how much better we would be if SDO could be replaced with a true conservative. Now I find myself dreaming of what it would be like to have one of the 4 liberals be replaced with anyone to the right of Marx.

I really think we are at the threshhold of something special in this country. Roberts has performed just I had hoped and as I predicted. He wants to change a lot of things. But it takes time. Bad precedent has to be chipped away at, then overruled. Otherwise, the public perception is that a change on the SCOTUS is like when party power changes in Congress or in the White House.

Solid reasoning behind constitutional opinions can withstand the test of time. I think Roberts understands this as well as anyone. His demeanor and diplomatic skills are what we need on a court that has 4 conservatives, 4 liberals, and 1 squish.

I think he can win over Kennedy more often than not. And when we get that reliable 5th vote, I am confident he and Alito will not disappoint us.

There is no doubt he will force us to be somewhat patient. Right now we don't have the votes to go undoing 5 or 6 bad precedents. But we do have the votes (often) to severely undercut them and scale them back. Then when the composition of the court changes in our favor once again, we will have already gone a long way towards setting up a brand new jurisprudence in this country.

Pray for our CJ, and that God will sovereignly give us one or two more vacancies in the next year.

When Roberts was first nominated, I remember hearing a lot of criticism about his record. Judge Roberts had not been on the DC Circuit for a long time. He didn't have the long judicial conservative record that Luttig, Jones, or Alito had. Sure, he had a long career in the Reagan-Bush administrations, but time at the bar isn't the same as time on the bench. "He's too stealth." "He's going to screw us over like Souter did."

I didn't buy that criticism then, I certainly don't buy it now. Roberts is a nice guy, but he's not a pushover. He's a strong presence at oral argument, and he's an even stronger writer, both for the Court and in dissent. I agree that he's got as good of a chance as anyone to win over Kennedy. His past life as a Supreme Court litigator has also taught him how to play to the quirks of the individual Justices, and there is none as quirky as Kennedy.

You make an interesting point about the post-1994 Rehnquist Court. It really was a balancing act. The Court's composition remained the same for so long that having new people now seems strange. It's an interesting kind of uncertainty.

I really don't think that another retirement will come before 2008. The Justices, especially the liberals, know how much is at stake. The liberal wing also knows that they are the elder wing. Not to be morbid, but it's just a matter of time before one of them has to leave the Court because of illness or death.

The results of the 2008 election will determine the direction of Constitutional law for the next decade. Everything is at stake in this one.

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