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With Jeffrey Toobin taking a little break these days, it’s going to have to fall upon the rest of us to explain the wacky world of law to the masses out there. So of course he gets yanked from the airwaves in the middle of one of the most consequential Supreme Court nomination fights in history. Or yanked himself off the airwaves, as the case may be.
And someone needs to be out there explaining this process. It may seem hard for lawyers to believe, but most people aren’t political junkies and don’t really care about any of this. They have lives that they go out and live while you’re reading Politico. Throw in the fact that law is — by design — more complex than even mundane politics, and you get commentary that oscillates between superficial and the sort of semantic law school hypo that’s impenetrable to the public.
In Mark Herrmann’s recent article, They’ll Neither Reverse Roe Nor Pack The Court, he offers the latter. Because if it walks like overturning Roe and quacks like overturning Roe, it’s overturning Roe.
Herrmann is writing for Above the Law so he expects to deliver to an audience of lawyers, and for us, this basic premise is dead-on. The Supreme Court is not going to “overrule” Roe because unlike straightforward politics, the law is a lot more slimy. It’s a perfectly possible outcome in the topsy-turvy world of law to say “of course women have a constitutionally protected right to get an abortion in the first trimester without unreasonable restrictions” and “we’ve decided limiting that right to ‘on the first Monday following the third Tuesday of the month’ is a reasonable restriction.”
And that’s why Herrmann’s title unintentionally sums up everything wrong with lawyers and how we interface with the world at this crucial juncture. Professionally, we all get what he’s saying, but when this story is picked up by mainstream outlets — it landed on Google News — the headline adds fuel to the disingenuous narrative that Republicans are trying to spin the fact that Amy Coney Barrett won’t “overrule” Roe to imply that her decisions would maintain the relatively popular opinion as opposed to irredeemably undermine it. Lawyers have an obligation to be cautious with our “inside baseball” language because there are a lot of non-lawyers out there grasping for some insight on this nomination and we can’t be putting stuff out there that they could misinterpret.
That said, Herrmann’s inside baseball solution is also flawed.
So why pack the Court and unnecessarily create an uproar? Instead, pass a law that requires seven justices to vote in favor to grant certiorari.
This ignores how abortion cases will get to the Supreme Court in the first place. It’s not going to start as “plaintiff wants you to overrule Roe” it’s going to be “Louisiana banned abortions under state law and the 5th Circuit said they’re cool with that.” Preventing the Supreme Court from hearing that case is just as corrosive to the precedent as either the looming “death of a thousand cuts” or the unlikely explicit overruling. It would codify that “abortion is illegal in Louisiana” because there won’t be enough justices willing to unsettle the opinion. This creates a patchwork of opinions where conservative state governments, assuming they have like-minded federal appellate benches, can obviate the Constitution on a whim.
And that result actually is overruling Roe for the non-junkies out there because it returns the country to the exact point it was when the Court handed down Roe — abortion is legal in states like New York, it’s illegal in states like Louisiana. It may not meet the technical definition of “overruling” that law school pounds into us, but if renders the on the ground result no different than if it was never decided, that’s what normal folks would consider overruling.
Earlier: They’ll Neither Reverse Roe Nor Pack The Court
Jeffrey Toobin Makes A Great Poi–OH MY GOD, HIS DICK’S OUT!!!
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.