If Justice John Roberts did not like the action by the frustrated citizens at the Capitol on January 6, 2021, the abortion case Dobbs v. Jackson Women’s Health Organization gives him a chance to head off a future such incident and to strike a real blow for representative government.  Since the original abortion case Roe v. Wade was decided in January 1973, the electorate has seen fit to elect Republican presidents timed so that 11 of the 15 Supreme Court Justices since have been appointed by Republican presidents.

Yet somehow the abortion cases of Roe, Doe v. Bolton, and Planned Parenthood of Southeast Pennsylvania v. Casey stand despite all of these justices appointed by Republican presidents.  Cutting off electoral change like this builds up pressure in the system and leads to days like January 6 or worse.

If Justice Roberts is the institutionalist he claimed to be during his confirmation hearing, he will not want such pressures to continue to build.  After all, all that such a decision will do is send this political decision back to the states.

Sure, there may be a lot of political heat on the Court in the immediate aftermath of such a decision.  But after a while, when the state legislatures have legislated, this issue will have shifted from the courts to the legislatures.  Future confirmation hearings may become much less political and less contentious after the Court has signaled that it will not make political decisions.  Even current and future Democratic appointees to the Court may come to view it as a good thing that this political decision is back in the political branches and the Court is back to mainly making judicial decisions.

Further, if Roberts is an institutionalist, he will want to get this decision out as soon as possible. Of course, the Court should take the time to write carefully well-reasoned opinions, but there is little reason to let this decision go to June or July.  The earlier this decision is announced, the further from the midterm elections it will be. 

James L. Swofford is a Professor of Economics in the Department of Economics, Finance and Real Estate

Image: Public Domain

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