According to CNN legal analyst Jeffrey Toobin, the election of a Republican president in 2008 will bring a certain end to Roe v. Wade.
Toobin has made the rounds promoting his new book, The Nine: Inside the Secret World of the Supreme Court. In a recent Time.com article (a straight question-and-answer account of his interview), Toobin stated the following:
Time.com: Your book strongly suggests that personalities and personal views are more important than case law.
Toobin: These Justices have tremendous discretion. The one thing that the Chief Justice said in his confirmation hearings that I completely disagree with is that Supreme Court Justices are like umpires; they just call balls and strikes. No. They make the rules. They are the commissioners of baseball. In fact, they are more like Abner Doubleday than an umpire. Deciding whether race can be used in college admissions, deciding whether states can ban abortion: those are not purely legal judgments. Those are political judgments, and the views of the Justices matter more than the Court precedents on questions like that.
Time.com: Since you bring up Roe v. Wade, what's its future?
Toobin: It depends who wins the 2008 election. If a Republican wins the 2008 election, Roe v. Wade will be overturned. There is no doubt about that. If a Democrat wins, it will likely remain in force. I don't feel that I'm going out on much of a limb there. But I think that's appropriate. The Republican party has been on record opposing Roe for two decades, and they've appointed 11 of the last 13 Justices. By rights it probably should have been gone by now.
Other comments by Toobin give insight to his political leanings. In response to a question about the famous 2000 election decision, Toobin stated: "I think Bush v. Gore was a disgrace. It was so transparently political, so poorly reasoned, so inconsistent with the prior views of the Justices."
Toobin also takes aim at "swing vote" Justice Anthony Kennedy, who disappointed liberals this past term with deciding conservative vote in a series of 5-4 decisions. A review by Salon.com described Toobin's protrayal of Kennedy as "merciless," and noted that "Toobin suggests that it was Kennedy's grandiosity and love of excitement that drove the court's disastrous involvement in Bush v. Gore..."
In a WashingtonPost.com live chat, Toobin seemed to lament Kennedy's good health and ongoing ability to render conservative decisions. "Justice Kennedy is hale and hearty and loving being at the center of the Court. I don't think he's giving retirement a thought at the moment. Why should he?"
A review in the Christian Science Monitor noted:
"There are times in 'The Nine' when Toobin reveals more about his own legal and political preferences than would be the case in a strictly objective account of the inner workings of the high court. Readers who share the author's left-of-center outlook will likely delight in Toobin's account. Others, looking for a more nuanced, politically neutral analysis may have to search elsewhere. As will many conservatives."
Getting back to Toobin's comments about Roe v. Wade, it is telling to note Toobin's certainty that the case will be overturned. In reality, there is no certainty at all that the election of a Republican president in 2008 will cause the abortion case to be reversed. First of all, there is no guarantee that the next president will make a Supreme Court appointment. While the "liberal Justices" are of advanced age, they also have life tenure, and they would presumably be reluctant to retire during a Republican presidency (they have been for the last eight years).
More importantly, there is no way to predict how a new Justice would rule on a review of Roe v. Wade. The new Justice would presumably be conservative, but the Democrats in Congress would be certain to obstruct the appointment of any Justice who would overturn Roe v. Wade. Also, liberal commentators assume that Chief Justice John Roberts and Justice Samuel Alito are certain votes to reverse Roe v. Wade, when those conclusions are not necessarily true (either could easily defer to the existing precedent - the application of stare decisis). Toobin himself points out that 11 of the last 13 Justices have been appointed by Republicans, and yet Roe v. Wade still stands as the law of the land.
So why does Toobin speak with such certainty? One answer could be that he truly feels that way. Another reason, though, might be that this type of rhetoric will fire up the pro-choice wing of the Democratic party, mobilizing the base in advance of a presidential election. The Democratic nominee for president is certain to make this same argument during the general election. Toobin assuredly won't be the last to argue that a new Republican presidency will end legalized abortion, but he might be the only one to make the argument while commenting as an expert and author on the Supreme Court.