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Tue, Feb. 21st, 2006, 06:22 pm

CNN: Justices tackle late-term abortion issue

I'm crossposting this from a message board, so it's a little breezy.

The case on point is Stenberg v. Carhart, 530 U.S. 914, from 2000. This case is, as far as I can see, a direct evolution from Stenberg, meaning that from a jurisprudential standpoint, there's no reason to expect the liberal wing of the Court to deviate from their positions - that is, Ginsburg, Breyer, Stevens and Souter should be expected to vote that banning partial-birth abortion without making a health exception is unconstitutional.

Scalia, Thomas and Kennedy should be expected to vote the same way as well, upholding the law banning partial-birth abortions. I'd be inclined to throw Justice Alito in with the conservative bloc, since he holds to a construction very similar to Scalia and Thomas.

Roberts, then, is the X factor. It's easy to say that he's likely to rule with the conservative bloc of Scalia, Thomas, Kennedy and Alito. However, Roberts' philosophy of judicial minimalism gives pause. He is a very conscientious jurist, and he's shown a strong respect for precedent throughout his time on the bench. Since he's not jockeying for an appointment - there's nowhere to go, after all - and since there's a case directly on point, I'd actually go out on a limb and forecast Roberts to vote with the liberal wing of the Court.

I'm therefore expecting Chief Justice Roberts to vote with the majority and assign himself the opinion, using it to reiterate the narrow scope of Stenberg.

Alternatively, if the Chief votes with the conservative wing of the Court (and thus overrules Stenberg), I'd expect him to assign the opinion to himself or to Justice Kennedy. Both Justice Scalia and Justice Thomas would write polemical opinions that would significantly affect precedent beyond Stenberg, which is not something that Roberts is willing, in my opinion, to do. He'll let them file concurring opinions similar to their dissents in Stenberg.