Law Professor Explains That Supreme Court Opinion Won't Be That Bad… Mugged By Reality 2 Hours Later - Above the Law

Are you worried that the draft opinion wholly reversing Roe and Casey leaked this week to Politico portends a coming assault on multiple other rights?

You’re not alone!

But thankfully for you, there’s a Federalist Society law professor who has dedicated his career to enabling the majority beyond this draft and he’s ready to explain that you’re only worried because you don’t really understand conservatives! Enter Berkeley’s Professor Orin Kerr, who took to Twitter to explain that everything’s fine.

He chases this up with some facially dubious arguments, but the one that really matters is a claim that conservatives really only care about abortion as a totally unique issue and have no designs on any other rights. Our former colleague here at Above the Law took issue with this.

What happens next, as captured in a screenshot, is a two-hour countdown to Kerr getting mugged by reality.

This is what gaslighting looks like during an oil crunch.

Or maybe it wasn’t gaslighting… which is arguably even worse. Maybe Kerr’s genuinely swallowed this tripe and gets off on the Charlie Brown lifestyle of crafting a whole new set of arguments every time the Court goes ahead and yanks the football.

Because his claim that the conservatives driving this movement see abortion as a one off is not only debunked by the last four decades of GOP campaigning, but it belies the fact that the whole anti-abortion movement was always a fig leaf for more aggressive rollbacks of race and gender rights. He argues that abortion isn’t as popular as same-sex marriage, which is only questionably relevant, but nonetheless not as clear as he suggests. One could also say, based on the very polls he cites, that 70 percent of people approve of marriage equality and 80 percent of people approve of legal abortion in some form.

Finally, he writes, “I take it that’s part of why the Dobbs draft states it wasn’t questioning cases involving gay rights, etc.”

This is the Susan Collins moment.

Which are you going to believe: the snippets that say they don’t really mean for this to apply to gay rights, or the other 97 and a half pages that explain how this absolutely applies to gay rights? Because as Mark Joseph Stern points out, the opinion is page after page of Alito saying that no right that isn’t “deeply rooted in this Nation’s history and tradition” and can’t be traced back earlier than the latter half of the 20th century is “egregiously” wrong and unworthy of stare decisis.

That’s in there for a reason.

There are a lot of equally superficial paths to overturning Roe and Casey, but the majority is seemingly compelled by the one that describes gay rights, contraception rights, and even laws against segregation as phony while brushing this off by throwing them in a couple string cites.

And the majority’s audience is listening.

Governor Abbott seized the majority’s invitation to kick immigrant children in the teeth by overturning Plyler. But that’s not the end. We’ve got former National Review editors saying “Next stop Brown v. Board.” Kerr can write that off as an outlier all he wants, but we’ve watched confirmation hearings where conservative judges flatly refuse to affirm that Brown v. Board is constitutional and the architects of the conservative judiciary explicitly complain that right-wing judges shouldn’t have to defend desegregation.

Attacking immigrants is, unfortunately, politically cheap. Kerr’s point about “popularity” is important only to the extent that the Supreme Court needs some state to go ahead and ban same-sex marriage or contraception or integration before Alito’s reasoning can extend past abortion. Is there an appetite to do that right now?

Kerr doesn’t seem to think so. Then he again he’s been proven wrong before.

And quickly.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

source: https://abovethelaw.com/2022/05/law-professor-explains-that-supreme-court-opinion-wont-be-that-bad-mugged-by-reality-2-hours-later/

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