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Succession after Scalia: How the GOP outmaneuvered Roe v. Wade

Six years after Republicans closed ranks to preserve their Supreme Court majority, another Democrat is in the White House to witness how that gambit paid off.

WASHINGTON (CN) — The American public received a wake-up call this week when a draft opinion overruling Roe v. Wade leaked from the Supreme Court. While the thought of winding back reproductive rights some 50 years was a shock to some, court watchers have been anticipating this moment for years as the collision of constitutional hardball and luck created a conservative supermajority of justices to tackle a long-sought goal. 

It was in the 1980s following Roe that the moral majority came to power. With their sights on the 1973 precedent protecting a woman's right to choose, legal conservatives began organizing to advance conservative causes. The Federalist Society emerged as a key player, particularly successful in finding and elevating conservative justices. These judges started challenging the legal reasoning in Roe while embracing textualism and originalism. 

“Starting in the 1980s, there came a very concerted effort on the right to develop an intellectual legal framework that would not just operate to challenge something like Roe but to also use the courts to advance conservative causes,” Maya Sen, a professor at the Harvard Kennedy School, said in a phone call. “It had its intellectual origins roughly around the Reagan era with the start of the Federalist Society.” 

This movement brought a challenge against Roe to the Supreme Court in the 1992 case Planned Parenthood v. Casey. At the time — as is now — the majority of the justices had been nominated by Republican presidents. Still the justices upheld Roe in a 5-4 decision that year, a possibility that seems far more remote today. 

“The Supreme Court in 1992 had more liberals and had more centrists,” Miranda Yaver, a politics professor at Oberlin College, said in a phone call. “The swing of justice at the time was Sandra Day O'Connor, who was to the left of Anthony Kennedy.” 

The court’s decision in Casey was a shock to the movement that thought the court might overrule Roe and led to Republicans appointing conservative justices with more firm stances on Roe and reproductive rights. 

“I think the right became much more concerned about appointing judges who potentially drift over to a liberal side,” Sen said. “So moving forward … they were very opposed to candidates who could potentially be wobbly on the issue of reproductive rights.” 

A turning point for the movement to overturn Roe came in 2016 with the death of Justice Antonin Scalia while President Barack Obama had just under a year left in his second term. Come June — with the Republican Senate stonewalling Obama's nominee, the now Attorney General Merrick Garland — the Supreme Court ruled 5-3 in Whole Woman's Health v. Hellerstedt that undue burdens can not be put on people seeking abortions. Justice Anthony Kennedy sided with the liberals. 

“Before Scalia died, it was a 5-4 conservative majority, but Anthony Kennedy was the person who was in the middle, and Anthony Kennedy is probably not the person who is going to go out and overturn Roe,” Sen said. “Then when Scalia died, that left the seat open for Obama to fill. …That would have shifted the balance of power 5-4 in the liberal direction so that would have made it extremely hard or basically impossible to overturn Roe.” 

Garland's nomination never even received a hearing from the Senate Judiciary Committee in Obama's lame-duck year. Once President Donald Trump took office, it was Justice Neil Gorsuch who went on to claim Scalia’s seat. 

But it was the following year with the retirement of Justice Anthony Kennedy that Republicans really shook up the status quo. Though Kennedy himself was a Reagan nominee, his tendency to side with liberals made him a swing vote on the bench. Trump replaced Kennedy with the much more conservative Justice Brett Kavanaugh. 

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Still in 2020, the court’s abortion jurisprudence favored abortion rights. In June Medical Services v. Russo, the court struck down as unconstitutional a Louisiana law that required abortion clinic doctors to have hospital admission privileges. Chief Justice John Roberts joined the liberals in the 5-4 ruling. 

Everything changed later that year with the death of Justice Ruth Bader Ginsburg. Despite multiple health scares, the octogenarian Clinton appointee had famously resisted calls to step down during the Obama administration to be certain that she would be succeeded by another Democrat. 

“Ruth Bader Ginsburg deciding not to retire, and McConnell playing constitutional hardball in keeping [Scalia's] seat open: Those two things are fatal to Roe,” Sen said. 

Trump installed Justice Amy Coney Barrett, and the writing was on the wall. Beyond turning the conservative majority to a supermajority, however, the move also had the effect of shifting court’s ideology further to the right. 

“The conservative majority is so large, they actually don't need John Roberts to join them and he's the most moderate member of that block,” Sen said. “You could have a five person super-conservative majority … so if you're Alito or if you're Thomas, you don't need to moderate the opinion at all.” 

This is particularly important in the case before the court now where it appears Roberts might have been compelled to take a more moderate position. Politico has reported that all three Trump appointees along with Justice Clarence Thomas signed on to the draft opinion from Justice Samuel Alito. This means they don’t need Roberts’ vote on their ruling or the language within the opinion. 

Mississippi brought the case at hand, challenging the constitutionality of prohibitions on pre-viability abortions, in June of 2020, about three months before Ginsburg’s death.

The state’s petition before the court explicitly told the justices they did not have to consider overturning Roe or Casey

“To be clear, the questions presented in this petition do not require the court to overturn Roe or Casey,” Mississippi Attorney General Lynn Fitch wrote in the petition

The state changed course a year later in June of 2021 — after Ginsburg’s death and Barrett’s appointment — calling the decades-old precedents ripe for reversal. 

Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented,” Fitch wrote. “So the question becomes whether this Court should overrule those decisions. It should.” 

It seemed all but certain, following oral arguments in the case in December, that the conservative supermajority would curb the right to abortion in some way if not completely overturning Roe. A leaked draft of the opinion released earlier this week shows the court completely overturning Roe while opening the door to curbing other rights based on the same framework. 

Experts say the court’s ruling to get rid of Roe would not only be a change from its decision in Casey but also its rulings as recently as 2016. 

“It's not even just a hard pivot from 1992 in Planned Parenthood v. Casey, where the court admittedly allows for significant abortion restrictions but still leaves the central premise of Roe untouched, but it's also a hard pivot from 2016 in Whole Woman’s Health v. Hellerstedt,” Yaver said. 

In the examination of how the court got to this moment, court watchers say the unexpected events in 2016 and 2020 really played an outsized role. This is bad news for liberals trying to follow a similar strategy. 

“You would need something really unexpected to happen,” Sen said. “You would need a sudden death or someone who is very stubborn and refusing to retire, like of Ruth Bader Ginsburg, and that just seems very unlikely to happen on the Republican side. It's so strange that we end up talking about unexpected deaths as being really important for policy with this institution but that's the reality of it.” 

While an unexpected event might have allowed the conservatives to cement a supermajority on the bench, the movement has been doing the leg work for the last 20 years in preparation for this chance. 

“What's happening right now is really showing the fruits of the labor of the conservative legal movement in the last 15 to 20 years,” Sen said. “They've put in a lot of work and identifying talent, nurturing conservative intellectual ideas, promoting the overturning of Roe as a goal, so I think this is like a real moment … showing a real success to the strategy.” 

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