Alito and Roberts Don’t Join Thomas on Abortion Decision, Not Problematic

National   |   Steven Ertelt   |   Apr 22, 2007   |   9:00AM   |   WASHINGTON, DC

Alito and Roberts Don’t Join Thomas on Abortion Decision, Not Problematic Email this article
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by Jordan Lorence
April 22, 2007 Note: Jordan Lorence is a senior counsel with the Alliance Defense Fund. He has litigated constitutional law cases since 1984, and has argued before the U.S. Supreme Court.

In one of the interesting omissions in today’s Gonzalez decision, Chief Justice Roberts and Justice Alito did not join Justice Thomas’ concurring opinion (joined by Scalia) which states that the Supreme Court’s abortion jurisprudence "has no basis in the Constitution."

I do not think pro-lifers and advocates of judicial restraint should be disappointed with Alito and Roberts decision not to join the Thomas concurrence. It is possible Alito and Roberts may not agree with Thomas and we could be disappointed with them in a future case deciding whether to overturn the right to abortion found in Roe v. Wade and Casey v. Planned Parenthood.

But there maybe something more important and encouraging going on here.

Think about the interpersonal dynamics and context of the decision. The Supreme Court is, in effect, reversing a bad decision from 2000 and now allowing lawmakers to ban partial birth abortion. This is what Justice Kennedy wanted to do back in 2000 in the Stenberg v. Carhart decision.

Fast forward to this term. There are five votes to uphold the federal law. Kennedy is writing a decision that essentially says, "See, I was right!"

It might come across as an insult to Kennedy’s moment of vindication if every one of the other four justices joining his opinion also joined an opinion saying, "throw out the Supreme Court’s abortion jurisprudence, including the Casey decision that Justice Kennedy helped write back in 1992?"

Reversing Roe v. Wade was not an issue in this case, so there was no need for them to express their views on that ultimate issue. They may have wanted to avoid a perceived snub to Kennedy, and help bring him back to the pro-life/judicial restraint point of view.

Scalia and Thomas could criticize the high court’s abortion jurisprudence with less fallout than if Roberts and Alito did, because Scalia and Thomas have for years expressed their criticism of Roe.

It is possible that they do not agree with Thomas and Scalia and that would be hugely disappointing. But they may be playing it smart not to offend Justice Kennedy, or they know of a pending retirement, which would make it unnecessary for them to express their abortion views now.

The fact that they did not join the Thomas concurrence may be explained by prudential concerns that do not reveal where they stand on the issue.

I could be wrong, but I do not think it is sufficient evidence that they have "gone wobbly" on the abortion issue. Therefore, I think the jury is still out on what Alito and Roberts would do when faced with a case to reverse Roe v. Wade and Casey.