Abortion and the court, or the silver lining that isn't

Alito and Roberts steer clear of the extreme views of Thomas and Scalia -- but only because they don't need them yet.

Published April 18, 2007 5:15PM (EDT)

If you're looking for some kind of silver lining in today's Supreme Court decision restricting abortion rights, this is about as close as you're going to get: While John Roberts and Samuel Alito sided, predictably, with the conservative majority, they didn't join Clarence Thomas and Antonin Scalia in declaring that the Supreme Court's "abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution."

But every silver lining has a dark cloud, and this one has at least two.

First, Roberts and Alito didn't need to make a broadside attack on Roe to get the result they wanted here; Anthony Kennedy's majority decision upholds Congress' ban on late-term abortion on grounds a little narrower than that.

Second, documents produced during the confirmation hearings for Roberts and Alito make it pretty clear that they're ready to launch a full frontal attack on Roe if and when the results they want require them to do so.

In 1990, Roberts signed a legal brief in which he argued, on behalf of the first Bush administration, that Roe was "wrongly decided and should be overruled." In 1985, Alito argued, in a memo to his Justice Department colleagues, that they shouldn't advocate a repeal of Roe, but only because he thought an incremental approach would be more effective in reaching that result eventually. "I find this approach preferable to a frontal assault on Roe v. Wade," he wrote then. "It has most of the advantages of a brief devoted to the overruling of Roe v. Wade: it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open."

As a Supreme Court justice, Alito has now signed off on exactly the sort of approach he was advocating as a lawyer. As the Center for Reproductive Rights' Nancy Northrup said today, "This opinion is in fact gutting the precedent without saying so."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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