Our Laffy-Taffy, Elastic Justice

Pity poor Anthony Kennedy, who surely must be waking up to the realization that being the “swing vote” on the Court sometimes just means you can’t win for losin’. Witness his Gumbyesque stretch across the aisle of the Court in Carhart v. Gonzales. Pulled from the right by Justices Antonin Scalia and Clarence Thomas, to whom he had to cater in order to keep his majority from splintering into a very unsatisfying three-judge plurality (been there-done that), and from the left by Justice Ruth Bader Ginsburg, who ardently horsewhips him for “disrespecting” Planned Parenthood v. Casey and Roe v. Wade. How to bridge the gap?

Step One: Placate Scalia and Thomas by assuming, hypothetically speaking, Casey is controlling authority, without really treating it as authoritative. “The principles set forth in the joint opnion in [Casey] did not find support from all those who join the instant opinion.” Slip op. at 14. Reminds me of the old joke about the economist who, stuck on a deserted island with only a can of beans, solves the problem by pronouncing, "First, assume a can opener." When was the last time the Court took this approach? “Assume Miranda v. Arizona was correctly decided. If it were, the defendant should not be on death row today, since he was not properly advised of his constitutional rights.” Sadly, this kind of unmoored “blue skying” seems to be par for the course in abortion jurisprudence, so let it go for now. Step Two: Pretend that “Whatever one’s views concerning the Casey joint opinion” (why can’t we all just get along?), a “central premise” of Casey was that “government has a legitimate and substantial interest in preserving and promoting fetal life.” Uh-oh, here she comes. Whack! “You’re refusing to take Casey and Stenberg seriously!” (Dissent at 3 - paraphrasing here.) Whack! “You said in Casey and Stenberg that we won’t legislate ‘basic principles of morality!’” (Id. at 15.) Whack! “You’re showing your hostility to reproductive rights by using right-wing code words like "baby” and “abortion doctor!” (Id. at 19) (Never mind that such terms are by no means confined to the Right – see Casey Mattox’s blog on this.) Even Justice Kennedy’s Step Three – Apologize to the Left by allowing that the door is wide open to “as-applied” challenges to the Act in situations where the “health exception” pertains – is too little, too late. By the time Justice Ginsburg is through with him, she’s made it pretty clear that it’ll be awhile before the Left allows him off the downstairs couch.

Justice Ginsburg completely misses the point here, which is, of course, that Casey is whatever Justice Kennedy makes it to be as the defining Fifth Vote. She can pretend all she wants that Casey’s disembodied Platonic meaning hovers penumbra-like over the Court, but we all know – including her – that Justice Kennedy made Casey, and he has now largely unmade Casey. All the old rules are new again in abortion jurisprudence: The People, through their state and federal legislatures, can express moral outrage and protect women and the medical profession by outlawing or regulating abortion procedures, and will be given deference instead of a “zero tolerance” approach when they do so. Most importantly, perhaps, the “reproductive rights” crowd will no longer be able to bring facial challenges to strike down abortion regulations or notice and consent laws on flimsy and hypothetical circumstances implicating risks to a woman’s health; they will be put to the proof in every instance

Is Casey a Lemon? Will Casey’s main lot in life (or walking death) be to suffer periodic exhumation, doomed to shuffle about at night, frightening abortionists and the reproductive rights gang? Time - and presidential politics - will tell. But the Casey of the Roberts Court is not the Casey of the last Court. Can Roe be far behind?