Analysis

Why Trump's next U.S. Supreme Court pick isn't likely to spell reversal of Roe vs. Wade

Whoever gets the post, legal scholars say, U.S. President Donald Trump's nominee to replace retiring Supreme Court Justice Anthony Kennedy likely won't lead to the outlawing of abortion. At least not in the way many progressives and pro-choice advocates fear.

Respect for precedent and the court's reputation may outweigh justices' personal beliefs

Anthony Kennedy, who has served on the U.S. Supreme Court since 1988, announced this week that he would retire on July 31. (Zach Gibson/Getty Images)

Whoever it ends up being, U.S. President Donald Trump's nominee to replace retiring Supreme Court Justice Anthony Kennedy won't likely tip the balance so far right as to end legal abortion, Supreme Court experts say. 

At least not the way many progressives and pro-choice advocates fear.

Trump vowed in 2016 that, if elected, he would install judges on the nine-court bench who would overturn Roe vs. Wade, the landmark 1973 decision that gave women the constitutional right to have abortions.

On Monday night, he's expected to announce his second Supreme Court nominee, the first, Neil Gorsuch, having been confirmed last April.

Choosing from a list of pre-vetted, right-leaning judges compiled by the conservative Federalist Society and the Heritage Foundation, Trump has reportedly winnowed his choices to three federal appeals judges: Amy Barrett, Brett Kavanaugh and Raymond Kethledge.

Kennedy's departure, expected at the end of this month, leaves the court evenly split along party lines, with four justices having been appointed by Democratic presidents and four by Republicans. Which is why some on the left fear that the appointment of a staunchly conservative ninth member, who would not deliver the non-partisan swing vote that Kennedy provided, could tip the balance squarely into the Republican camp.

Standing by decisions

Still, legal scholars say preserving the court's integrity as a dependable institution remains a compelling reason to protect Roe vs. Wade, regardless of who gets the appointment. 

For them, it comes down to stare decisis (Latin for "to stand by decisions"), the judicial doctrine that promotes legal consistency and stability in rulings.

"Everyone will say they're a believer" in the principle, said Lisa Tucker, a Supreme Court expert who lectures at Drexel University in Philadelphia.

"Stare decisis is the very first thing I teach on the very first day of law school. And if a judge said he or she didn't believe in stare decisis, that would be incredibly alarming, and hopefully disqualifying."

The Roe decision could well survive the loss of Kennedy's swing vote and the nomination of a new Trump-approved justice if, as expected, Chief Justice John Roberts, appointed by George W. Bush, assumes the role of the swing vote.

The Supreme Court … tends to avoid overturning longstanding doctrines, particularly those with a pronounced social or political impact on the country.- Jonathan  Turley , George Washington University law professor

"Roberts is an institutionalist," keen to protect the court's precedent-setting integrity, says Jonathan Turley, a law professor at George Washington University in D.C.

"The Supreme Court … tends to avoid overturning longstanding doctrines, particularly those with a pronounced social or political impact on the country."

If it hasn't been overturned in the decades since, it's unlikely that would happen now, says Ken Klukowski, the senior counsel for the religious-freedom group First Liberty.

"This has been an issue that liberal activist groups have been scaring voters with for decades. It happened with [former justices] Sandra Day O'Connor, David Souter and Anthony Kennedy … and all of them voted to reaffirm Roe vs. Wade. It's still there."

Access to abortion could still get harder

Just because Roe won't likely be overturned doesn't mean access to legal abortion isn't about to get a lot harder.

It's more probable that a new conservative majority on the bench would support "chipping away at" Roe vs. Wade through a series of narrowing decisions rather than a single reversal of the precedent, Turley said. 

Even if Roe stands, there are other ways legal abortion could be put in peril.

"Death by a thousand cuts," said Harvard Law School medical ethicist Glenn Cohen, an expert on the Supreme Court. "Slowly, you'll see increasingly restrictive abortion laws that don't directly overrule Roe vs. Wade passing muster."

Outgoing Supreme Court Justice Anthony Kennedy, right, swore in the newest Supreme Court Justice, Neil Gorsuch, in April at the White House. (Joshua Roberts/Reuters)

In 2016, for example, the Supreme Court struck down a Texas law restricting abortions in the case Whole Woman's Health vs. Hellerstedt in a 5-3 vote. Justice Kennedy was among the dissenting opinions. A fifth conservative judge on the bench might have changed that outcome.

Cohen says it's likely this incremental erosion of reproductive rights would create "a red-blue divide" whereby abortion in the most conservatives states remains technically legal but severely restricted.

Hand-picked conservatives

Trump's final three possible nominees — Barrett, Kavanaugh and Kethledge — all come pre-approved by conservative lawyers. The president told Fox News he won't ask any of the candidates how they'd vote on overturning Roe vs. Wade.

He wouldn't have to anyway, says constitutional law expert Peter J. Smith. That the judges made it onto the Federalist Society-Heritage Foundation list in the first place solidifies their conservative credentials.

Amy Coney Barrett is a former clerk for the late Supreme Court Justice Antonin Scalia and a Notre Dame law school graduate who was appointed last year to serve on the 7th U.S. Court of Appeals. (Robert Franklin/South Bend Tribune/Associated Press)

Barrett's devout Catholicism and membership in the faith order People of Praise is seen as an indicator she would lean toward supporting decisions that restrict access to abortion. Smith said Kavanaugh has a long record of judicial writing consistent with the view that the Roe decision was wrong.

Kethledge, he said, is viewed as "the most moderate" of the finalists.

It's a "working assumption" that any of Trump's nominees will favour overturning Roe vs. Wade, says Dick Howard, with the University of Virginia school of law.

Tucker doesn't buy the argument that the prevailing justice will disregard their own anti-abortion views in order to protect precedent. Settled precedents have been overruled before. And the court has recently shown willingness "to use stare decisis selectively," she said.

Federal appeals judge Brett Kavanaugh, 53, is Donald Trump's pick to sit on the U.S. Supreme Court. (Dennis Cook/Associated Press)

Last week, for example, the court overturned a 40-year-old precedent on public sector unions in the Janus vs. AFSCME labour union case, ruling that non-union workers can't be forced to pay fees to public sector unions.

"Roe is in that same time period," Tucker said. "So, we've seen the justices willing to say, 'No, we disagree with what those past justices said, and we're making a new rule now.' And I don't see why that couldn't happen here, too."

Would need a lower court challenge first

To conservatives, that sounds like liberal hysteria.

Elizabeth Slattery, a legal fellow with the Heritage Foundation, says she's heard this song before.

"The U.S. Supreme Court does not pluck issues out of the news and decide to rule on them," she said. "They only hear cases that have been brought up through the lower courts and have percolated for a while."

It's no small feat to reverse the abortion law. The highest court in the land only hears about one per cent of cases petitioned, after all.

To overturn Roe vs. Wade, a case would first have to be brought in a lower court that involves outlawing abortion. Tucker said test statutes challenging the law through federal courts could eventually "be used as a vehicle to overrule Roe vs. Wade."

Yet much of the table setting is already being put in place. The Trump administration has in recent months sped through a record number of conservative judicial appointments. If the matter goes to the Supreme Court and four of the justices on the high court vote to accept the case, both parties in the case would file legal briefs. If the justices deem it necessary, each side would present oral arguments and an eventual opinion would be written.

In the end, this isn't the president's choice alone.- Lisa Tucker, Supreme Court expert, Drexel  University

Five votes would be needed to overrule a settled precedent, and Justice Roberts could still rule to uphold the precedent. It would take a long time to get to that stage, though.

Once Trump announces his nominee Monday, that person must then clear a confirmation and majority vote in the Senate. Republicans have a slim 50-49 majority in the upper chamber, but Susan Collins and Lisa Murkowski, two Republican moderate senators, might be unwilling to support a nominee keen to undo Roe vs. Wade. 

"In the end," Tucker noted, "this isn't the president's choice alone."

About the Author

Matt Kwong

Reporter

Matt Kwong is a Washington-based correspondent for CBC News. He previously reported for CBC News as an online journalist in New York and Toronto. You can follow him on Twitter at: @matt_kwong