Q&A Friday #22: Will Roe v. Wade Be Overturned By Bush’s New Nominees?

by John Hawkins | September 9, 2005 2:10 am

Question: “Considering how loathe the SCOTUS is to overturn itself, how likely is it that Roe v. Wade will actually be overturned even with Bush’s new nominees?” — mightysamurai

Answer: Scalia, Thomas, & hopefully Roberts and Pick #2 would still only add up to 4 votes against Roe v. Wade. In order to overturn Roe v. Wade, Bush would need to replace at least one more liberal judge.

Will Bush get the opportunity? You never really know, but there have been rumors floating around about Stevens, Ginsberg, and Souter bowing out. If he were able to replace any of those judges (or Breyer or Kennedy), it’s entirely possible that it could mean the end of Roe v. Wade. If Bush were able to replace 2 of the liberal judges — which isn’t out of the question — Roe v. Wade would be as good as gone.

Now, is it possible that you could have a conservative judge who thinks Roe v. Wade is bad constitutional law, but who’ll still be reluctant to overturn it once he gets on the Supreme Court? Yes, but the overwhelming majority of conservatives including Thomas & Scalia don’t consider Roe v. Wade to be “settled law.” So to me, it seems unlikely that anyone Bush appoints would end up “splitting the baby” in that manner.