McCain, Roe, and "Minimalism"

Patterico objects to an LA Times editorial asserting that McCain will appoint justices who share his views that Roe v. Wade is wrong and should be overturned. Patterico argues that McCain has said that he would appoint judges like Alito and Roberts, who have declined (so far) to argue explicitly that Roe should be overturned.

But this is a distinction without a difference: there’s no evidence of any meaningful distinction between Scalia/Thomas and Roberts/Alito on the issue of reproductive freedom. None of the four will ever vote to rule a restriction on abortion unconstitutional. Whether the Court explicitly announces that Roe is overruled doesn’t matter if the Court is going to stop providing any meaningful protection for abortion rights. This was Rehnquist’s strategy in Webster: the Court could uphold a draconian ban on abortion without overturning Roe as long as there was some minor difference (such as a rape/incest exception) between one ban and the Texas law struck down in Roe. And I’m not even sure that such differences are necessary. After all, if we remember Carhart II — the most ridiculous example of the Roberts’s Courts fake minimalism — you can apparently uphold a statute virtually identical to one struck down earlier without overturning the previous case.

So the LA Times is essentially right. What matters is whether McCain will seek to appoint justices who will provide meaningful protection to aboriton rights, and it’s clear that he will not. There’s no reason to pretend that the de farco overrulings of the Roberts Court actually leave precedents standing. Whether the Court dismantles abortion rights piecemeal or through a single dramatic opinion isn’t important except that the former is politically better for the Republican Party. Democrats are under no obligation to provide this political cover.