When the case on overruling Roe was argued in December, the court’s three liberal members sounded dismayed if not distraught at the prospect of such a stark shift so soon after a change in the court’s membership. Justice Ginsburg, a liberal icon, was replaced by a conservative, Justice Amy Coney Barrett, who was Mr. Trump’s third appointee to the court.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.
The court’s conservative wing seemed unmoved. Indeed, its five most conservative members seemed to have little interest in a more incremental position sketched out by Chief Justice John G. Roberts Jr., who suggested that the court could uphold the Mississippi law at issue, which bans most abortions after 15 weeks, and leave it at that for now.
Professor Shaw said some members of the court may have been emboldened by the lack of a sustained national outcry over the Texas abortion law.
“They’ve dipped their toe in the water of essentially ending Roe in the second-most populous state in the nation,” she said. “They may well have drawn the conclusion that any backlash to the overruling of Roe would be somewhat muted or short-lived and would not create an existential threat to the court.”
The inconclusive report issued by Mr. Biden’s commission on potential changes to the court’s processes and structure may also have given the court’s conservative majority confidence that it had nothing to fear from the other branches.
“When the Biden commission came back with its report, that just further took the brakes off,” Professor Vladeck said. “This is not 1937.”