Newsweek had published my new essay, titled Roberts Court Poised to Unravel Roe’s Precedential “Paradox”
This is the intro:
The Supreme Court considered Wednesday whether Mississippi’s fifteen-week abortion ban was valid. Surprisingly, the Supreme Court did not discuss whether the 14th Amendment to the Constitution allows states to ban pre-viability abortions as originally understood. Rather, the bulk of the two-hour proceeding focused on whether the Court should stand by Roe v. Wade, the landmark 1973 precedent that conjured a constitutional right to abortion.
Roe’s supporters argue that overruling this precedent would cause unpopularity, so the Court should keep the Court’s clearly incorrect decision to prevent it from weakening its public image. This is absurd. Independent jurists are the only way to ensure that the Court is legitimate. They must be able to faithfully rule on cases according to written law. By contrast, judges who base their decisions on popular opinion subvert the Court’s legitimacy.
Thankfully, the Roberts Court now seems poised to unravel Roe v. Wade’s precedential paradox. After oral arguments, a majority of the justices seem to agree that Roe should be overruled because it is wrong, regardless of how supporters of that decision will respond. The Court, in other words, appears set to decide the case based on the law—and the political chips will fall where they may.
Justice Sotomayor posed the following question during argumentation:
This will create a perception among the public that Constitution reading and the Constitution are political acts. Will it survive?
Justices that base their decisions upon “public perception” are the only ones who make a stink.
The essay reveals that Justice Barrett and Chief Justice Roberts channeled logic from the Justices to whom they were clerks.