Sunday, November 14, 2021

If Kavanaugh And Barrett Betray Pro-Lifers, We Must Blow Up The Conservative Legal Movement

If we don't have justices who are comfortable overturning outrageously unconstitutional abortion rulings, it will be proof of the conservative legal movement's utter failure.
Less than a handful of years after their hard-won elevation to the Supreme Court, Justices Brett Kavanaugh and Amy Coney Barrett are sending a chill down the spines of conservatives with a string of bad signals from their seats on the court.
In July, Kavanaugh and Barrett joined the court’s leftist majority in declining to hear Arlene’s Flowers v. Washington, a critical religious liberty case. They again sided with the court’s left in a similar decision to turn away a religious exemption challenge to Maine’s vaccine mandate — which Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas took pains to note was staggering in its hypocrisy.
“A State may not assume ‘the best of individuals engaged in their secular lives while assuming ‘the worst’ about the habits of religious persons,” the trio wrote.
Just this week, Barrett and Kavanaugh embraced a theory of judicial supremacy out of step with a more conservative tradition when they both appeared openly skeptical of the construction of the Texas abortion law, which bans the practice after six weeks of pregnancy.
All of this should make the guts of conservatives churn in the leadup to next month’s oral arguments in Dobbs v. Jackson Women’s Health, the biggest abortion case the court has heard in decades. I’ve written about the importance of this case before:
While abortion cases post-Roe have tricked up to the Supreme Court on rare occasions, none have presented the clear and fundamental question that Dobbs now brings: whether or not bans on pre-viability elective abortions violate the Constitution.
In ruling on this case, the Court will have the opportunity to overturn both Roe and Casey, which together form the architecture for a constitutional entilement to abortion.
It is not an understatement to say this is the case pro-life conservatives have been waiting for. It’s why many in our movement willingly shed blood in the vicious fight for the confirmations of Kavanaugh, Barrett, and Gorsuch. The prospect of a majority conservative court was a key reason millions of Republicans turned out to vote for Donald Trump.
So the trepidation conservatives now feel about where Kavanaugh and Barrett may end up on Dobbs is both unexpected and unwelcome. There is a distinct possibility that Barrett, Kavanaugh, and possibly the George W. Bush-appointed Chief Justice John Roberts will find a way to hedge; to “both sides” their way into a narrow and distorted opinion in a case that, as Mississippi’s Attorney General Lynn Fitch has laid out, demands a clear imperative with regard to the dubious constitutional standing of Roe and Casey.
To be clear, with a 6-3 allegedly conservative court, anything less than a decision ringing with clarity on the dismissal of Roe and Casey should be viewed as a failure. Despite the goal-post-shifting going on in establishment Republican legal circles, there is no “long game” here. Although some will argue that any ruling that chips away at Casey is good enough, Roe is the case that created the constitutional entitlement. It is the architecture upon which the legal abortion structure is built. Both Roe and Casey must go.
Read the rest from Rachel Bovard HERE

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