A Supreme Court That Capitulates On Roe V. Wade Will Unleash A Whirlwind

It profits a man nothing to gain the world if he loses his soul—and the deal is even worse if the earthly gain is just a chance at the fleeting respect of a few law professors. Nonetheless, that is how the left is hoping to tempt Brett Kavanaugh as the Supreme Court considers a direct challenge to Roe v. Wade.

Writing at National Review Online, Ed Whelan observes that such a sales pitch from Harvard Law professor Noah Feldman “isn’t subtle.” Feldman does not attempt to argue that Roe and subsequent decisions such as Casey are correct as a matter of law and constitutional interpretation. Instead, he resorts to mean girl tactics—only cool justices get to guest lecture at the Ivy League table.

He offers Kavanaugh the approval of the left-wing legal establishment in exchange for voting to preserve the invented constitutional right to abortion on demand. Of course, Feldman cannot promise to deliver on his end of the bargain—he admits the left might still hate Kavanaugh even if Kavanaugh gives in to their demands.

This is just a more personal version of the left’s efforts to intimidate conservative judges, as seen in the recent threats to pack the court. Sometimes these tactics work, as seen in Chief Justice Roberts’ reported switch to save Obamacare, or in Anthony Kennedy’s vote in 1992 to stand by Roe v. Wade. But the consequences of unprincipled political calculation by the court cut both ways.