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Opinion ‘Calm down,’ libs! A look back at select pieces of Roe commentary

Justices Neil M. Gorsuch and Brett M. Kavanaugh. (Doug Mills/AP)

Lisa Blatt, an attorney who has argued more than 40 cases before the Supreme Court, wrote an opinion piece for Politico Magazine after the nomination of Judge Brett M. Kavanaugh to serve as a Supreme Court justice. “I’m a Liberal Feminist Lawyer. Here’s Why Democrats Should Support Judge Kavanaugh.,” reads the headline on the August 2018 piece.

Whatever Kavanaugh decides on the landmark 1973 ruling in Roe v. Wade, wrote Blatt, “I know it will be because he believes the Constitution requires that result.”

Fabulous!

Kavanaugh indeed expressed his constitutional convictions last week, when he voted as part of the majority opinion that overturned Roe, ending the constitutional right to abortion and leaving the matter to the states. An estimated 40 million women are losing access to abortion.

Something tells the Erik Wemple Blog that, Blatt’s opinion notwithstanding, Democrats these days aren’t supporting Kavanaugh.

In addition to launching a national debate about the U.S. legal system and minority rule, the court’s decision in Dobbs v. Jackson Women’s Health launches a trip into the archives: How did news organizations prepare citizens for this judicial cataclysm? Who saw this coming?

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Many did, even before the six-justice conservative majority was in place. “The plan to overturn Roe v. Wade at the Supreme Court is already in motion,” noted a CNN headline in June 2018. NPR in July 2018: “What would the U.S. look like without Roe v. Wade, the 1973 case that legalized abortion nationwide?” Vox in October 2018: “Get ready for the opinion [Roe] to be gutted.” The New York Times editorial board in January 2019: “Roe v. Wade Is at Risk. Here’s How to Prepare.”

The likelihood of Roe’s undoing, of course, ramped up over the span of the Trump administration. In early 2017 came the confirmation of Judge Neil M. Gorsuch to the bench, a seat essentially stolen from then-Judge Merrick Garland, President Barack Obama’s choice to replace Justice Antonin Scalia. Then, in 2018 and 2020, Trump filled two additional vacancies with Kavanaugh (who replaced Anthony M. Kennedy) and Amy Coney Barrett (who replaced Ruth Bader Ginsburg).

Perhaps the most famous Roe forecast came from CNN chief legal analyst Jeffrey Toobin, who tweeted the following on the news that Trump would get to fill his second Supreme Court vacancy:

Post columnist Kathleen Parker didn’t share Toobin’s forecast, to put it mildly. “If Chicken Little and Cassandra had a baby, they’d name him Jeffrey Toobin,” Parker wrote in a July 2018 column headlined: “Calm down. Roe v. Wade isn’t going anywhere.” Lamenting the “unloosing of hysteria upon the land,” Parker relied on anonymous sources to challenge the gathering consensus that Roe was toast.

“What new justice would want to be that man or woman, who forevermore would be credited with upending settled law and causing massive societal upheaval?” Parker asked. “As for other conservative justices, only Clarence Thomas would likely vote to overturn Roe v. Wade. Sen. Susan Collins (R-Maine), one of the most important voices in this discussion, echoed the thoughts of close-to-the-court sources, who told me that neither Chief Justice John G. Roberts Jr. nor Neil M. Gorsuch would likely want to wade into that swamp and weigh in on a Roe v. Wade reversal.”

Turns out that enough conservative justices had their waders at the ready. Asked whether she stands by her column, Parker responded, “One hundred percent. At the time it was written, it was accurate — it was on the nose.” Timing is critical to her point, she argues: The column appeared two years before Ginsburg’s death and Barrett’s confirmation, which proved pivotal in tilting the landscape against Roe. “I have had excellent sources on the Supreme Court for many, many years,” said Parker, who sees Gorsuch, Roberts and Kavanaugh as incrementalists disinclined to undo important precedents in a single ruling. Had the “jackals” of the abortion rights movement not protested at Kavanaugh’s house, Parker said, he might well have switched sides in the Dobbs case.

In a September 2018 Tennessean op-ed, Frank Boehm, a professor of obstetrics and gynecology at Vanderbilt Medical Center, used the logic of his profession to contend that Roe “will not be overturned.” A “significant number of abortions performed are due to serious and often life threatening illnesses, as well as for serious congenital fetal anomalies, incest and rape,” reasoned Boehm, who also pointed to the availability of safe abortion medication and polling that shows a majority of Americans did not want to jettison the precedent. “I would like to believe that the well-educated and wise justices on the Supreme Court know all this as well and will not overturn a law that a majority of Americans support and would cause an entire new set of serious societal problems,” Boehm wrote.

In a May 2021 Forbes piece titled “No, The Supreme Court Is Not About To Overrule Roe v. Wade,” Evan Gerstmann, a professor of political science at Loyola Marymount University, issued this prediction, with the 6-to-3 conservative majority in place: Given the current political climate (including Senate Majority Leader Chuck Schumer’s warning that the Justices ‘will pay the price’ if they vote against abortion rights) Roberts will probably keep this decision for himself and produce a narrow opinion.” Other legal analysts, too, cited the possibility that Roberts would drive a moderate course on abortion.

Gerstmann tells the Erik Wemple Blog via email, “I am surprised at the Court’s over all approach. They are in a hurry to make fundamental changes in the law that are well beyond what is needed to decide the case before them.”

Precisely. The misfiring pieces are grounded in naivete regarding Republican politics. Then-Sen. Majority Leader Mitch McConnell (R-Ky.) didn’t steal a Supreme Court appointment from Obama — and, later, jam Trump’s third appointee onto the bench — just to tweak the idling speed of American jurisprudence. The plan all along has been to overhaul it — fair play be damned.

Asked how he arrived at his own prediction on Roe’s demise, Toobin said, “I listened to what Donald Trump had said during the campaign.” In an October 2016 presidential debate, Trump promised, “I am putting pro-life justices on the court.”

So Toobin did something very risky when it comes to Trump: “I took him at his word,” the CNN analyst said.

Though we’ll never be rid of erroneous predictions from pundits, we hereby put forth a pitch for obliterating puff-piece testimonials from high-flying lawyers. In Blatt’s case, for example, she wrote glowingly about Kavanaugh and then went on to argue several cases in his presence. Though her standing as a Supreme Court lawyer was disclosed in the piece, that’s a cringey conflict for any news outlet. A Politico spokesman responded, “The piece was from the perspective of one who argues frequently before the Supreme Court and other federal courts who was familiar with Judge Kavanaugh on a personal level. To your point, the disclosure is to alert readers who may be concerned that the opinion(s) expressed in the piece might be shaped by self-interest given the professional aspect of the relationship.”

And Neal Katyal, who served as an acting solicitor general in the Obama administration, had appeared before the court many times in the decade before he penned a New York Times op-ed headlined “Why Liberals Should Back Neil Gorsuch.” It mentioned reproductive rights among a number of pressing legal matters and endorsed Gorsuch as someone who would “help to restore confidence in the rule of law.”

At the time he wrote the piece, Katyal had cases pending before the court, though the op-ed didn’t mention that towering consideration. Then-Times public editor Liz Spayd reported that it was the Times, and not Katyal, that was responsible for leaving out the author’s litigation experience.

Even with the stoutest of disclosures, this form of op-edding would smack of legal logrolling. It should be ruled journalistically unconstitutional.

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