Rocky, I'm interested as to the reasons why these news commentators figured the Supremes would be unlikely to take this case? I've been thinking about this a lot myself, and there's so many different possible strategies and scenarios (pardon me -
major court geek post coming up) that I figure things could play out many different ways. So, as you know, the Court only needs 4 votes to grant a writ of certiorari to hear a case. So 4 justices need to agree to hear this case...
This will be a very strategic vote. The justices who want to preserve
Roe would obviously want to vote against granting cert...
unless they figured the balance on the Court was still in
Roe's favor (as long as kennedy hasn't changed his mind about things, even assming alito and roberts both to be anti-
roe, you've still got a 5-4 majority in favor) Taking that risk could actually be really smart - the more times
Roe gets upheld in spite of recent conservative appointments, the more entrenched and unshakeable it starts to look. Also, if the Court is forced into reaffirming
Roe so soon after the appoinments of Alito and Roberts, then it will no doubt be a loooooong time before they face another head-on challenge to
Roe, and the pro-choice folks will have dodged a major bullet in terms of the Court shifting rightward but nonetheless mistiming its opportunity to overturn
Roe.
Now then - this is a hugely risky strategy, of course, because as long as the case never reaches the Supremes,
Roe will remain the law of the land . So there's not really much to lose in not taking the case, while there's an enormous amount to lose if it's taken - and lost. This will likely make the pro-
Roe justices very antsy, and inclined, I'd wager, to vote to deny cert.
Now, what about the anti-
Roe justices? I think both Scalia and Thomas are itching to revisit
Roe - both of them detest the precedent. I suspect they'd both vote to grant cert. But Alito and Roberts and much harder to predict here. First it's merely an educated guess on my part that they're anti-
Roe - don't know for sure. But let's say they are. They might nonetheless be wary of taking such a high-stakes abortion case - all-or-nothing - sooooo soon after their appointment. They spent a lot of time assuring the Senate of the fact that they hadn't rigidy made up their minds about anything and that they weren't predisposed to rule a particular way in an abortion case (no doubt a complete farce - which they're nonetheless forced to engage on by our country's stupid mythology about what judges do) and they might be reluctant to come out guns blazing so soon after the confirmation hearings. But I don't know.... on the other hand they might be militantly anti-
Roe and itching to overturn it just as bad as Scalia.
So it's really hard to predict....even Scalia and Thomas, if they figure
Roe would be upheld 5-4, might vote to deny cert so as not to have the precedent reaffirmed. From their perspective it might be much wiser to delay until Stevens, who is 85, dies or leaves the court - if this happens during Bush's second term, then get ready for a confirmation battle which will make Alito seem like a lovefest.
In short, all the justices have to strategically vote on the granting of certiorari based on how they think their colleagues will act - everyone is trying to outguess and outplay everyone else. No doubt it's a goldmine for rational choice theorists....
.....all of that said, my very very very tentative thought here is that the pro-life forces in South Dakota (who are intentionally trying to force a Supreme Court decision reexamining
Roe itself) have jumped the gun a wee bit, strategically. Until another pro-
Roe justice leaves, barring Kennedy having changed his mind, there are still five justices on the Court who have voted to uphold
Roe. It seems unwise to march this case to the Court with that balance. If it does go to the Court with its current composition (i.e. no sudden deaths or retirements!) then be prepared for a strategy on both sides focused almost
entirely on Anthony Kennedy. He is the key here.
phew....that was fun.... and dorky....
Cheers,
M
