Future of Conservative Court May Be Signaled by MS Abortion Case

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With the start of the U.S. Supreme Court’s October session, front and center will be the politically charged Mississippi abortion law. The pro-life law prohibits abortions after 15 weeks except for a “severe fetal abnormality.” It does not exempt rape or incest victims.

Adam Charnes
Adam Charnes

Kilpatrick Townsend & Stockton attorney Adam Charnes told the firm’s clients at a September CLE in Winston-Salem that the Mississippi case may chip away at Roe but likely will not overturn it. It will be the seventh challenge to the 1973 Roe v. Wade decision to reach the high court.

“It’s hard to see if Mississippi wins how there’s much life left in Roe,” said Charnes. “I think you’ll see much more dramatic restrictions on abortion access in the areas of the country you’d expect, such as the south and the Midwest.”

The October session is the first time the 6-3 conservative court, with three Trump appointees, is meeting for an entire session.

“The court could easily have denied review, which does suggest that the court wants to do something here with abortion law,” said Charnes. “In earlier abortion cases, Chief Justice Roberts has shown he is not willing to let states violate Supreme Court precedent to move against abortion. There is reason to suspect that either Kavanagh or Barrett may want to take a go-slower approach.

“One of the points Roberts, Kavanaugh, and Barrett are going to be focusing on is stare decisis,” he added. “Even if they disagree with Roe and thought it was wrongly decided, in whole or in part, whether they should respect it as a matter of precedent and not overrule it for that reason.

“It [the Mississippi case] will give us a window into the Court’s general approach to areas of the law the majority may not agree with. It will be a signal of how aggressive this six justice conservative lot is going to be about changing precedent or how they may adopt different views of the law than previous compositions of the Court when new issues pop up.”

BREYER RETIREMENT?

The pressure on liberal Justice Stephen Breyer to retire is increasing. Breyer will turn 83 this year.

History says that the Democrats will lose ground in the 2022 mid-term election. It could flip the Senate back to Republicans and give Mitch McConnell, as Senate Majority Leader, the ability to put his thumb on the scale if Breyer dies or retires before 2024 and/or if the Republicans retake the White House in 2024.

“On the one hand, it would be pretty reckless of Breyer not to retire when there’s a Democratic Senate and a Democratic president,” explained Charnes. “On the other hand, Justice Ginsburg did not retire when she could have assured a Democrat would replace her. Nixon-appointee Chief Justice Rehnquist didn’t retire during the first term of the Bush administration. He died shortly after Bush was sworn in for a second term. There is a pattern of justices who refuse to retire, whether for good or bad reasons, on a schedule that allows the president of their party to replace them.”

Breyer, who is said to be in good health, told CNN in July that he has not decided when he will retire and is especially gratified with his new role as the senior liberal on the bench.

BIDEN AND SCOTUS

This will be the first full session that the six conservative justice Court meets under a Biden administration.

“Trump took very aggressive legal positions. I think you’re not going to see that sort of thing with the Biden administration,” said Charnes. “Of course, they are also constrained by having six Republican justices on the court. Previously the liberal justices would prevail in a significant number of cases because they would be able to convince one of the then-five conservative justices to join them. The six conservative justices have a margin of error to make sure that doesn’t happen.”

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