At this point, it’s a matter of vote counting. And, looking at the Ramos v. Louisiana opinions, which we just reviewed. Our judgment that Ramos represented a sign of hope may have been premature.
Ramos is about two things. The first and foremost is….stare decisis. Ramos overruled a previous SCOTUS decision, Apodaca v. Oregon.
For present purposes it doesn’t matter what either case was about or what the cases held. What is important are things like this: Justice Gorsuch delivered the opinion of the Court with respect to I, II-A, III, and IV-B-1. Ugh. Notably absent from that list is Part IV-A of Justice Gorsuch’s opinion.
What is part IV-A about? The second thing: the Marks rule. And most especially the implication of that case – or the arguable implication, at any rate – that the opinion of a single SCOTUS Justice can bind the whole SCOTUS and thus the whole country, which Gorsuch’s Part IV-A rejects.
Only Justices Ginsburg and Breyer joined that part of the Gorsuch opinion, though. That is, it got three votes out of the nine. Justice Kavanaugh makes sure to point that out in a footnote in his concurring opinion.
And what is Kavanaugh up to, anyway? He goes on and on about when a precedent can be overruled, or in other words when stare decisis will not be determinative.
Our guess? Justice Kavanaugh is outlining a rationale for voting NOT to overrule Roe v. Wade. We think he probably believes this will discourage future debacles at confirmation hearings like he had, where boorish behavior even as far back as high school can come back to haunt you. The idea being: “Hey, you did all this stuff to discredit me because you were protecting Roe v. Wade and look, I voted to uphold it anyway!”
There are institutional concerns at stake. There are always institutional concerns at stake in the SCOTUS. Sometimes we think that’s all that is ever at stake in the SCOTUS.
In any event, counting the votes: Thomas and Gorsuch are sure votes to overturn Roe. Alito and Chief Roberts are likely the same, but not “sure”. That’s four. We need one more.
Ginsburg, Breyer, Kagan and Sotomayor are sure votes to retain Roe. It should be noted, though, that even Ginsburg has conceded that Roe was wrongly decided. But as Kavanaugh explains at great length, there are reasons to keep even a wrongly decided precedent.
For our part we are more interested, at this stage, in the split of opinion on section IV-A of the Gorsuch opinion.