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Roe v. Wade’s unlikely champion

Andy Haile

Andy Haile


Monday, July 16, 2018

With President Trump announcing Judge Brett Kavanaugh as his nominee to replace Justice Anthony Kennedy on the U.S. Supreme Court, the public discussion has turned to whether a new justice will tip the ideological balance of the Supreme Court and help overturn Roe v. Wade, the 1973 case that established a woman’s right to choose whether to end a pregnancy.

The assumption is that a fifth conservative justice will embolden red states to enact restrictive anti-abortion laws and that the majority-conservative Court will uphold those laws.

A seemingly unrelated opinion issued by the Supreme Court in its most recent term, however, may give some hope to those who fear the curtailment of abortion rights.

In June, the Supreme Court issued an opinion addressing whether a state could require an internet retailer (think Amazon) to collect sales tax even if the retailer has no “physical presence” in the state. The “physical presence” requirement originated in a 1967 Supreme Court decision involving a mail order company. In that case, the Supreme Court ruled that because the company had no employees or facilities in Illinois, the state could not require the company to collect Illinois sales tax.

Times have changed since 1967, though, and according to the Court’s June decision the inability of states to require internet retailers to collect sales tax results in up to $33 billion in lost tax revenues annually.

Writing for the majority in the Court’s June decision, Kennedy overturned the physical presence requirement that had been in effect for over 50 years. Kennedy wrote that given the “continuous and pervasive virtual presence of retailers today” through e-commerce, the physical presence test has become “simply irrelevant.”

In other words, despite the long-standing precedent of the physical presence rule, technology has changed commerce and the law needs to evolve in recognition of that change. Justice Kennedy was joined in the majority by three conservative justices (Alito, Thomas, and Gorsuch) as well as Justice Ruth Bader Ginsburg, whose husband was a renowned tax lawyer.

Chief Justice John Roberts, joined by the liberal block of Justices Breyer, Sotomayor and Kagan, dissented in the case on the basis that long-standing decisions of the Court should not be overturned except in exceptional circumstances. In his dissent, Chief Justice Roberts acknowledged that the 1967 decision establishing the physical presence rule was “wrongly decided, for many of the reasons given by the Court.” Nevertheless, he would have upheld the rule.

Roberts was willing to live with what he deemed a “wrong” decision based in large part on his view that the Supreme Court “does not overturn its precedents lightly” and “departing from the doctrine of stare decisis [the principle that prior court decisions should remain valid] is an exceptional action demanding special justification.”

While Roberts’s statements about the value of maintaining precedent were made in a tax case, and not in the more politically-charged context of the abortion debate, they provide some hope for supporters of a woman’s right to choose that Roberts will respect “settled law,” even if he personally disagrees with the original decision establishing that law.

Offering additional hope, Roberts has demonstrated his willingness to break with other conservative justices. In perhaps the highest profile case of his tenure, Roberts cast the swing vote and sided with the Court’s four “liberal” justices to uphold Congress’ authority to enact Obamacare. Despite the severe backlash that decision evoked from conservative pundits, Roberts again maintained aspects of Obamacare in 2015, when he wrote the majority opinion upholding tax credits for certain Obamacare participants.

These decisions demonstrate Roberts’s willingness to disregard political orthodoxy and act in a manner that he believes consistent with prior law and in the best interest of the Court.

Given the value he places on precedent and his willingness to act independently from the other conservatives on the Court, the continued viability of a woman’s right to choose in conservative states may now rest squarely with an unlikely champion.

Andy Haile is an associate professor of law at Elon University School of Law. He can be reached at ahaile@elon.edu.


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