Would a Romney win destroy Roe v. Wade?

October 16, 2012

Obama Romney SCOTUSLast week during the Vice Presidential Debate, Vice President Biden stated that “the next president will get one or two Supreme Court nominees.”

The statement was made when the topic of discussion was abortion, and Biden was attempting to illustrate that Roe v. Wade, and, by extension, the legal right to an abortion, is endangered.

Obviously, as Mr. Biden pointed out, the nominees to replace any outgoing Justices would vary greatly based on who wins the presidency this year, and these nominees could greatly shift the balance of power on the Court.

This got me wondering: which two Supreme Court Justices would be the next to leave, and what impact would their departure have?

Let’s start with the first question.

When a Supreme Court Justice voluntarily decides to retire depends on a few factors.

The first two of these are the Justice’s age and health.

Currently, the ages of the Justices are as follows:

Justice Age
Antonin Scalia 76
Anthony Kennedy 76
Clarence Thomas 64
Ruth Bader Ginsburg 79
Stephen Breyer 74
Chief Justice John G. Roberts 57
Samuel Alito 62
Sonia Sotomayor 58
Elena Kagan 52


With the average retirement age of Supreme Court Justices being around 79, it would seem that Justice Ginsburg would be on her way out, and Justices Kennedy and Scalia wouldn’t be far behind.

As many commentators have noted, however, today’s Justices are waiting longer to retire than their historic counterparts.

Ginsburg herself has stated that she wants to retire at the same age as Justice Louis Brandeis, who retired at age 82, which leaves her on the bench until at least 2015.

Of course, Ginsburg’s health may not permit her to stay on the Court that long: she has had several bouts with cancer (colon cancer in 1999 and pancreatic cancer in 2009).

What about Justices Kennedy and Scalia?

Kennedy was hospitalized in 2009 with “mild chest pain” and had a stent inserted during the same visit.

Scalia, on the other hand, has had no health problems – at least none that have been publicized.

In this case, then, it seems that when a Justice decides to retire depends less on his or her age or health than on a third factor: who is the current U.S. President.

For at least the next four years, that will be determined by the outcome of this year’s election.

If Mr. Romney wins, we may be more likely to see the retirement of conservative Justices such as Scalia and Kennedy.

If Mr. Obama wins, it will be very likely that not only Ginsburg retires, but Justice Breyer as well.

However, if Romney wins the election and is reelected four years later, it’s doubtful that both Justices Ginsburg and Breyer will hang on for another eight years (until they are 87 and 82, respectively).

If even one of these two liberal Justices retires during a Romney administration, it would further solidify the Court’s conservative majority, especially if, as Mr. Biden asserted during the debate, Robert Bork were the Romney administration’s advisor on the matter.

Conversely, an Obama win in November would more or less maintain the ideological status quo on the Court (assuming, naturally, that illness or death doesn’t strike one of the conservative Justices).

As for the impact Romney appointees would have, should they be replacing one or two liberal Justices: although we know that there would be a significant impact, we really don’t know how great of an impact because we don’t know which cases will come before the Court.

For now, let’s just address the one issue that Mr. Biden mentioned by name: Roe v. Wade.

With a Romney appointee, would the right to an abortion be in jeopardy?

Possibly, but perhaps only slightly more so than it has been since Sandra Day O’Connor’s retirement.

Although Kennedy isn’t as conservative on the issue as Scalia or Thomas, he’s still categorically anti-abortion.

However, as Planned Parenthood v. Casey demonstrated, Kennedy is uncomfortable with a wholesale reversal of Roe.

Depending on how the Chief Justice views the issue, this hypothetical ideological shift could easily lead to the destruction of the legal right to an abortion.

Although it’s very unlikely that such a ruling would eventually result in a federal ban on the procedure, it would result in several states imposing such bans.

Thus, as Mr. Biden claimed, a Romney victory would very likely endanger the legal right to an abortion.

We’ll know for sure if and how this will come to pass within the next few years – or the next month.