With the announced retirement of Justice Anthony Kennedy – the swing vote on numerous social-issue cases, some are anticipating the end of Roe v. Wade. I think we may finally see the court move toward a more consistent jurisprudence – one where there is not one set of rules for abortion legislation, and another set for everything else.
But beyond that, I think many will be disappointed. Chief Justice Roberts has shown an aversion to interfering with the status quo. His rulings in the Obamacare cases have shown that, when push comes to shove, his judicial philosophy is primarily, “Don’t rock the boat.” I can envision a court that slowly undoes some of the damage – not of Roe, but of Casey. But it will likely be slow and incremental, and will be based on a series of very narrow rulings that continue to insist that nothing is being overruled. Otherwise, I could see CJ Roberts becoming a swing vote on occasion with the liberal bloc in very narrow rulings that have stinging dissents from the four conservative justices for upholding abortion/gay marriage, etc, and concurrences that complain that the CJ did not go far enough in endorsing those things.
Since the retirement of Sandra Day O’Connor, there was hope that perhaps the court would be more amenable toward strict constructionist/limited government/pro-life/pro-family causes. But Roberts has not been a reliable vote for those things, and Kennedy seemed to enjoy the last decade of being the “swing vote” with the four more liberal justices. I can see a Roberts court with him as the new swing vote, saying that it would be inexpedient to overrule long established precedents, even if the reasoning of the original ruling has been criticized by those even on the far left (as Roe has been).
Is this the moment when we as a nation finally step back from the brink, and admit that all human life is precious, made male and female in the image of God and worthy of protection of both under the law and in society from cradle to grave? I’m not sure we’re even on the brink anymore. I think the culture has jumped headlong into the abyss. It will take catching a hanging branch, and then clawing our way slowly back to solid ground before we hit the bottom and fall apart as a nation and culture. In other words, it will be a long, hard effort. It will be a battle for hearts and minds, and it will take decades or more to reclaim what has been lost. One new person in one third of the government is hardly a moment that will turn the culture away from death, and toward life. It may be one small step along the way. Perhaps we will finally grab the branch. Perhaps not. But if we do grab hold, and finally stop our descent into madness and dissolution, that’s when the hard work really begins. The fall is easy. Scaling the cliff to get back to where we were – that will be real effort.