A president and a precedent: On a collision course?

Friday, July 6, 2018
 | 
Chad Groening, Steve Jordahl (OneNewsNow.com)

keep abortion legal abortion kills signsA constitutional attorney believes there's a good possibility Americans could see a Supreme Court that could be even more conservative in the future – one that could relegate Roe v. Wade to the "dust bin of history."

On Monday, Trump will announce his pick to be the successor to Justice Anthony Kennedy, who will officially retire from the bench on July 31. Three federal judges are reportedly on the president's final list, and confirmation of any of them could guarantee a 5-4 conservative advantage on the court.

OneNewsNow spoke with Matt Barber, co-founder and chief counsel of Christian Civil Rights Watch. According to Barber, there's a perfect storm brewing for a court that could be tilted 7-2 or even 8-1 with conservative justices. He says for one thing there are health concerns with liberal Justice Ruth Bader Ginsberg, who is 85 years old.

Barber, Matt (Christian Civil Rights Watch)"There is a good chance she will be stepping down within the next year or two," he states. "[Justice Stephen] Breyer is getting up in there in age [80 next month], and he is a possibility for retirement as well. So there are exciting things in the future for the United States Supreme Court."

Barber says liberals are losing their minds over this "because they recognize they are about to lose their Communist United States of America that they envision."

The pro-life attorney is hopeful that a conservative-tilted Supreme Court will right another terrible wrong. "I believe that if President Trump is able to get through a good solid constitutionalist on the high court, Roe v. Wade is not long for the world," he tells OneNewsNow. "I believe we will soon see Roe v. Wade aborted and thrown into the dust bin of history."

So how likely is that to happen? Legal experts disagree on if Trump's pick to replace Kennedy will mean an end to the landmark 1973 decision that legalized abortion nationwide.

Writing for NBC News, legal analyst Danny Cevallos reflects the thinking of some optimistic abortion advocates who contend that Roe v. Wade isn't doomed even if the president nominates a true pro-life conservative to the high court. The Supreme Court, he argues, is reluctant to change settled law or an established precedent. But Steve Aden of Americans United For Life says Roe doesn't qualify as "settled."

Aden, Steven (ADF)"Some of the facts that you look at are: Is the prior decision respected? Is it regarded as well-reasoned?" the AUL general counsel suggests. "Those certainly are not true for Roe, which has received criticism from the left and the right for its results-oriented, hackneyed reasoning."

Others note the court cannot just pick an issue and rule on it; that there has to be a case before them that challenges Roe – and none seem to be close. Again, Aden disagrees.

"The last time the Supreme Court almost overturned Roe in Planned Parenthood v. Casey, it was looking at several provisions of a Pennsylvania abortion statute, none of which was a direct challenge to Roe," he points out.

He says the Casey decision is also informative in that it would have done away with Roe – but for a last-minute change of heart when retiring Justice Anthony Kennedy changed his vote to uphold the controversial 45-year-old law.

Finally, Aden notes that one potential nominee in particular has already signaled a willingness to go there even if one were to concede that Roe is settled law. "Amy Coney Barrett of the Seventh Circuit has written extensively on stare decisis* and been critical of some decisions – among them Roe," he notes.

As of Thursday afternoon, Barrett remained one of the names reportedly still on Trump's short list of possible nominees.


* stare decisis – the legal principle of determining points in litigation according to precedent

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