19 notes &

Some people may see predictions that Roe will be overturned, however, as having a “boy who cried wolf” quality. After all, a majority of the justices on the Supreme Court have been appointed by conservative Republicans for more than two decades, and yet Roe is still standing (albeit in weaker form.) Overturning a popular precedent would have political downsides for the Republican Party. So would Romney actually nominate an anti-Roe justice?

Almost certainly yes, for two reasons. First of all, the survival of Roe was not the result of Republican calculation but was highly contingent. Had Ronald Reagan nominated Robert Bork and Antonin Scalia in reverse order, Bork would have been confirmed by a Republican Senate and Roe would have been overruled by 1992. George H.W. Bush’s nomination of David Souter reflects the relative lack of priority the former put on the abortion issue, but Souter certainly wasn’t nominated because he supported reproductive rights; Bush could have just as easily nominated a candidate with relatively unknown views who turned out to be anti-Roe. A lot of luck has been involved in maintaining Roe, and it would be unwise to assume that this will continue.

And secondly, conservatism has changed. Mitt Romney will not be permitted to be as indifferent about a Supreme Court justice’s position on Roe as George H.W. Bush was. (David Souter’s moderation insured that it will be a long time before a Republican president appoints someone similar.) And while a justice who explicitly opposed Roe would be vulnerable to a Democratic Senate like Bork was, a generic Republican appellate court nominee is substantially more likely to favor overruling Roe than a generic Republican nominee 20 or 30 years ago would be. Even if Mitt Romney wanted an otherwise conservative pro-Roe justice, he wouldn’t have many options — and there’s no reason to believe he would want do that.