It was my honor to befriend Judge Robert Bork in the last years of his life. Not surprisingly, I don’t find much amusement in the cesspool that judicial-confirmation politics has become since his name became a synonym for slander in 1987 — a debacle that changed history for the worse in more ways than the woodenly whimsical Anthony Kennedy’s assumption of what should have been the Bork seat.
Still, I admit to chuckling over the musings of Senator Susan Collins of Maine, a “moderate” Republican in the Kennedy mold. With the justice announcing his retirement after 30 years on the Court, a confirmation battle royale is shaping up over his successor, whom President Trump is expected to nominate on Monday. On cue, Senator Collins has let it be known that she would look askance at any nominee who has “demonstrated hostility [towards] and an eagerness to overturn Roe v. Wade.”
Go ahead and Roe, Roe, Roe your boat, Senator. Thanks to Justice Kennedy, we’ve actually been living in a Casey world — as in Planned Parenthood v. Casey — for the past quarter century. For good and for ill. “Don’t you dare touch Roe” is the political hyperbole of Democrats and their fellow travelers. It is not a serious legal position — as if serious legal positions had anything to do with confirmation politics.
Here is reality: Casey’s refinement of the right judicially manufactured in Roe granted expansive and expanding room to regulate abortion. The validity of those regulations, not the core holding of Roe, is what dominates abortion litigation nowadays. It is unlikely that cases will present a need to grapple with Roe, it is even less likely that Roe will be overturned, and even if this highly unlikely event were to come to pass, it would not render abortion illegal. Instead, abortion would once again be a question for the states, the vast majority of which would guarantee some degree of access to abortion. We are not going to move into a post-Roe era, but even if we did, no woman who could obtain an abortion today would be unable to get one post-Roe.