Joe Ravi via Wikimedia Commons
Trump-appointed justice Brett Kavanaugh is likely to be the deciding vote on Roe.
According to The Washington Free Beacon:
Justice Brett Kavanaugh is expected to be the swing vote when the Supreme Court takes up a challenge to Roe v. Wade later this year. A review of the justice’s opinions suggests that he is open to overturning the landmark 1973 decision.
The Court will hear arguments on Dec. 1 in a case challenging Mississippi’s 15-week abortion ban. A clinic in Jackson, Miss., is attacking the law on constitutional grounds, and the state has responded by asking the Court to overrule Roe altogether. Kavanaugh is the most closely watched justice in the case, Dobbs v. Jackson Women’s Health Organization. Pro-choice forces need support from two Republican-appointed justices to preserve Roe.
The Court’s most conservative members—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—make unlikely prospects, having criticized Roe to varying degrees. Justice Amy Coney Barrett is less certain, but she was associated with pro-life causes as a law professor and has questioned Roe‘s precedential weight in her scholarly writing. That leaves Chief Justice John Roberts as a prospective fourth vote, and Kavanaugh as a fifth.
Kavanaugh has written very little about abortion in 15 years on the federal bench. A canvass of those writings shows a preference for caution and restraint. But Kavanaugh has left a trail of anti-Roe breadcrumbs in his citations and approving references to pro-life authorities. Abortion was a dominant theme of Kavanaugh’s bitter confirmation fight, and a decision upholding Roe even in part would deflate social conservatives and ignite a circular firing squad in the GOP.
Both red and blue states are preparing legislation in the case that Roe is overtured.