Kavanaugh seen as justice to watch in potentially landmark case challenging ‘Roe v. Wade’

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Supreme Court Justice Brett Kavanaugh may hold the key vote in a Mississippi case that is being viewed as the most serious challenge to the 1973 Roe v. Wade case legalizing abortion in all 50 states.

University of California-Berkeley Law School Prof. John Yoo, a former deputy attorney general in President George W. Bush’s administration, told Fox News’ Shannon Bream Tuesday evening that “the person to watch is clearly” former President Donald Trump’s second high court nominee.

Yoo made his observations ahead of Wednesday’s arguments before the Supreme Court regarding a 2018 law passed in Mississippi that bans all abortions after 15 weeks. The law has never been enforced; it was immediately blocked by federal courts.

“I’m sure [Kavanaugh] is making liberals grit their teeth after they tried to stop him from getting confirmed to the court a few years ago,” Yoo continued, predicting that the high court’s three liberals — Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer — will vote to uphold the current Roe framework.

Meanwhile, constitutional originalist Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch “have clearly signaled that they think Roe was wrongly decided and should be overturned,” Yoo said.

“It’s the two Trump justices — Amy Coney Barrett and Brett Kavanaugh — whose votes are in play, who I think will make the decision,” Yoo said, adding that he believes Chief Justice John Roberts’ vote ultimately won’t matter, and that in the end, Barrett will side with opponents of Roe as well.

Regarding Kavanaugh, Yoo said “we know almost nothing about his views,” while past writings from Barrett appear to indicate she disagreed with Roe.

Bream then referenced a Newsweek article which dissected an 18-page opinion Kavanaugh wrote that was not joined by any other justices regarding a Sixth Circuit Court of Appeals decision from last year in which he “suggested Roe could be found to be ‘grievously and egregiously wrong’ and to have caused ‘significant real-world consequences.'”

Asked to respond, Yoo suggested that Kavanaugh’s view in that case, which involved an abortion law in Louisiana, won’t necessarily translate to the Mississippi case, and that ultimately Kavanaugh and Barrett could decide to uphold Roe because of Supreme Court precedence, not because they believe the law is valid.

“Now, Kavanaugh has published his opinion saying, ‘well, I’m not gonna overturn past opinions, even if they’re wrong,'” unless a series of other conditions present themselves, Yoo said. “On the other hand, I have a hard time thinking that Kavanaugh is gonna be the justice who wants to be the fifth vote to uphold Roe and go down in history as sort of the Harry Blackmun or the Anthony Kennedy or the David Souter — the conservative justice who kept Roe alive.”

Yoo went on to reason that, based on past rulings, Roberts will likely be “the fourth vote to uphold Roe” because of his past support for a legal concept known as stare decisis, which is Latin for “to stand by things decided.”

A decision in the case will most likely come next year around June or July, towards the end of the high court’s current term.


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Jon Dougherty


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