- The Supreme Court on Wednesday will hear the biggest challenge to abortion rights in decades.
- Legal scholars told Insider that Justices Brett Kavanaugh and Amy Coney Barrett are the ones to watch.
- Either of the two justices could cast the deciding vote to overturn or uphold Roe v. Wade, they said.
Mississippi on Wednesday will ask the Supreme Court to overrule Roe v. Wade, the law of the land for nearly 50 years. All nine justices will hear arguments on whether to preserve or undo abortion rights, but Americans should pay close attention to two members of the court: Justices Brett Kavanaugh and Amy Coney Barrett.
Legal scholars anticipate that either one of them could cast a crucial vote in the case of Dobbs v. Jackson Women’s Health Organization, determining the fate of abortion in the United States.
“If we’re trying to figure out who’s going to cast the deciding vote, it’s going to be one of them,” Mary Ziegler, a law professor at Florida State University and an abortion historian, told Insider.
The case centers on a 2018 Mississippi law that bans abortions after 15 weeks of pregnancy, challenging the standard held in Roe, which declared that states cannot prohibit abortion before roughly 24 weeks. After the law was passed, the state’s sole abortion provider, Jackson Women’s Health Organization, sued Mississippi, and lower courts struck down the law as unconstitutional.
But Thomas Dobbs, state health officer for the Mississippi Department of Health, appealed to the Supreme Court, now stacked with a 6-3 conservative majority, which agreed to take up the challenge. The Republican-led state contends that Roe and a subsequent 1992 landmark decision that upheld the ruling, Planned Parenthood v. Casey, are “egregiously wrong” and has urged the Supreme Court to overturn them. Lawyers representing the abortion provider have asked the court to keep abortion rights intact.
The Supreme Court is poised to deliver a ruling on the case by next June, and could dramatically transform reproductive rights and impact millions of Americans.
Kavanaugh and Barrett, both appointed to the bench by former President Donald Trump, may end up holding the cards on the decision due to a combination of guesswork and simple math, according to legal scholars.
How the numbers stack up
Five votes are required for a majority Supreme Court ruling. The court’s three liberals, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, have long voted to protect abortion rights and are largely expected to do so again in the Mississippi case, experts say.
“It’s very clear where Justice Kagan, Justice Sotomayor, and Justice Breyer are,” I. Glenn Cohen, a professor at Harvard Law School, told Insider. “They are going to vote to strike down the Mississippi law as unconstitutional … They don’t want to reverse Roe v. Wade. This has been consistent in their jurisprudence.”
Of the bench’s conservative wing, Justices Clarence Thomas and Samuel Alito have explicitly disapproved of the court’s decades-long precedent. Thomas, often described as the court’s most conservative member, said Roe was wrongly decided in the Casey ruling almost 30 years ago.
“Justice Thomas and Justice Alito are pretty clear from their prior votes that they are on the side of thinking that the right to abortion in the Constitution is wrong. It doesn’t exist,” Cohen said. “So their votes are pretty set.”
Justice Neil Gorsuch, who Trump appointed in 2017 to replace the late conservative Justice Antonin Scalia, has a sparse judicial record on the issue. Yet, in his few years on the high court, he’s sided with abortion restrictions. He also leans heavily conservative, leading experts to project that he’ll likely be in favor of Mississippi’s law.
By that calculation, three justices are inclined to leave Roe in place and three justices are open to upending it.
Chief Justice John Roberts leans more toward the center than his conservative colleagues, but he has previously voted to uphold abortion restrictions. In 2016, he sided with a Texas law that the court’s majority decided imposed an undue burden on abortion rights.
But Roberts tends to be a believer in stare decisis, a legal principle that translates to sticking with precedent. Last June, he voted with the court’s liberals to strike down an abortion statute in Louisiana, on the basis that the law was practically identical to the Texas one four years prior, which the court blocked. Most recently, he ruled against the court’s decision to uphold an “unprecedented” law in Texas that bans abortion after just six weeks of pregnancy.
Roberts is also widely considered an institutionalist, protective of the court’s reputation and wary of perceptions that it is partisan or politicized. Legal scholars say it’s difficult to predict what side of the Mississippi case he’ll land on, but either way, “he’s no longer the swing vote” because of Barrett’s addition to the court last year, Ziegler told Insider.
“We’d still be watching for that, essentially to see if he can persuade Kavanaugh and Barrett to come along with him. But he doesn’t actually have control. It’s more just the possibility that he’ll be able to convince his colleagues. He’s a lot less powerful than he was,” Ziegler added.
Roberts could join the liberal justices to block Mississippi’s law, but he could still be outvoted 5-4 by the conservative majority, Mark Kende, a professor at Drake University Law School, told Insider. That scenario could be “a little bit of a judicial nightmare” for Roberts, he added.
“What gets really interesting,” Kende said, is that the most important vote then comes down to Barrett and Kavanaugh.
Cohen echoed the sentiment, saying: “It’s Justice Kavanaugh and Justice Coney Barrett who we will be watching closely.”
Kavanaugh and Barrett on abortion
The possible threat to abortion rights hung over Kavanaugh’s and Barrett’s confirmation hearings after Trump campaigned in 2016 on picking “pro-life” nominees for the Supreme Court.
Democrats scrutinized Kavanaugh for his 2017 decision on a three-judge panel of the DC federal appeals court to postpone an abortion sought by a 17-year-old immigrant held in federal custody, and a 2003 memo he wrote as a Bush administration lawyer speculating whether all legal scholars agreed that Roe was “settled law of the land.”
Kavanaugh attempted to tread lightly on his stance on abortion during his confirmation hearing, calling Roe “an important precedent of the Supreme Court” that’s “been reaffirmed many times” and describing Casey as “precedent on precedent.”
Abortion-rights supporters also grilled Barrett on her past statements on abortion when Trump nominated her in September 2020 to succeed the late Justice Ruth Bader Ginsburg, a champion of reproductive rights.
In 2006, Barrett, then-a law professor at Notre Dame University, signed on to an advertisement by an anti-abortion group to “oppose abortion on demand and defend the right to life from fertilization to natural death.” Ten years later, Barrett spoke publicly about abortion at an event, saying Roe’s “core holding that women have a right to an abortion” isn’t likely to change but questions exist about late-term abortions and restrictions on abortion providers.
In her confirmation hearing for a seat on the Supreme Court, Barrett was vague about her position on Roe. “All nominees are united in their belief that what they think about a precedent should not bear on how they decide cases,” she said at the time.
“These justices were appointed with the abortion question looming very strongly in the background,” Cohen told Insider. “My sense is that it’s very much on people’s minds as to these justices’ legacies, and I’m sure very much on these justices’ minds as to their legacies.”
Barrett has only had one vote on abortion in her time on the high court, which was to keep Texas’ recent six-week ban in place. That case concerns a technical question related to the law’s unique design that calls on private citizens rather than state officials to enforce the law. The justices did not review the constitutionality of the anti-abortion law.
Barrett appeared skeptical of the law during the case’s arguments earlier this month. Kavanaugh, too, seemed reluctant to embrace Texas’ position, although he previously voted to temporarily maintain the law.
Cornell Law School professor Sherry Colb, for her part, said the justices’ questioning did not indicate any support for abortion rights and pointed to Kavanaugh’s comments as evidence.
“There’s a loophole that’s been exploited here or used here,” Kavanaugh said of the Texas law. “It could be free speech rights. It could be free-exercise-of-religion rights. It could be Second Amendment rights.”
To that, Colb responded: “They were concerned about gun rights and about religious freedom. It had nothing to do with abortion, and they were simply asking those questions because of how the Texas law was written expressly to avoid judicial review.”
Kavanaugh in 2020 joined other conservatives on the bench and voted to uphold a Louisiana abortion restriction that the court ruled against. But, he argued, more information was needed to decide the case, appearing less strident in his dissent compared to Thomas, Alito, and Gorsuch.
‘Crystal ball-type speculation’
Both Kavanaugh and Barrett have steered toward the middle in recent significant Supreme Court rulings. They voted to uphold Obamacare against a GOP-backed challenge. They also have signaled some hesitancy to move the law quickly, opting for smaller decisions rather than sweeping ones, somewhat similar in judicial style to Roberts. In a religious liberty decision, Kavanaugh and Barrett stopped short of overturning a previous ruling that fellow conservatives Alito, Thomas, and Gorsuch argued was necessary.
Kavanaugh and Barrett are “somewhat cautious justices who have indicated at times that they want to go along with Roberts,” Kende said. They “have shown some reluctance to go as far, for example, as Alito and Thomas.”
Consequently, legal scholars are divided on how the two justices might vote in the Mississippi abortion challenge.
“It’s quite clear that Justice Thomas and Justice Alito are of the view that they’ll write an opinion that says Roe v. Wade is not good law, it was never good law. There’s no constitutional right here,” Cohen said. “It’s less clear whether Coney Barrett and Kavanaugh are as interested in writing an opinion like that at this stage of their career, but who knows.”
Josh Blackman, a professor at the South Texas College of Law, said the newest members of the court are likely to follow Roberts’ lead on the Mississippi abortion law. He described the court as a 3-3-3 split, made up of liberals Breyer, Sotomayor, and Kagan, conservatives Thomas, Alito, and Gorsuch, and moderates Roberts, Kavanaugh, and Barrett.
“The three moderates will ride together, altogether. They’ll do it jointly,” Blackman said, but added that the direction they could vote in remains uncertain.
“I think they’re motivated by things that aren’t entirely law and that makes them unpredictable. If this was a question of law, then they’d be overruling in five seconds because they think that Roe is wrong. I think they’re affected by other factors that are not law, by public perception, by the court’s reputation, by whatever you want to call it,” he said.
Reading the tea leaves of the Supreme Court is a tricky endeavor, some experts said. The justices’ judicial backgrounds and their questioning on Wednesday could reveal some of their thinking, but it’s more of a “crystal ball-type speculation,” according to Kende.
“Candidly, I think the court is going to divide,” Kende said, warning that “predicting the court is always a bit risky.”
But for Colb, the votes that Barrett and Kavanaugh will cast are crystal clear.
“Both of them are opposed to Roe. They won’t say it … but there’s no mystery,” she told Insider. “It’s just a question of whether it’s going to be 5-4 or 6-3.”