How hypothetical is an outright reversal of Roe v. Wade

On the subject of Jerry Kilgore's response or lack thereof to Tim Russert's question about what would he do as Governor of Virginia if the Supreme Court overruled Roe v. Wade and the Virginia legislature passed a ban on abortion - Russert noted that the Chief Justice is being replaced, Justice O'Connor is being replaced, and another justice is 85 years old - referring to Justice Stevens. (Virginia law says the life expectancy of an 85 year-old man is 5.2 years, if that means anything.)

Russert did not mention that Justice Ginsburg, a cancer survivor, is also the subject of retirement rumors. Currently, it appears that Justices Stevens and Ginsburg would vote against overruling Roe, along with Justices Kennedy, Souter, and Breyer. (Kennedy joined with Stevens and Souter in declining to overrule Roe in the Casey case.) Justices Scalia, Thomas, Breyer, Kennedy, and Souter will probably remain on the Court for the foreseeable future. Judge Roberts will almost certainly be confirmed as Chief Justice. The replacement for Justice O'Connor will be nominated and probably confirmed while the Republican majority in the Senate continues, as it will at least through January 2007.

In November 2006, 33 U.S. Senate seats are theoretically up for grabs. The Crystal Ball explains that the Democrats probably will not regain a majority in the Senate in 2006, since "Republicans must defend 15 seats, while Democrats have 18 (counting the Senate seat of the lone Independent-Democrat)." Iraq and Katrina may have some effect on those prospects. If somehow the Democrats have 51 or more Senators in the next Congress, and if Justices Stevens and/or Ginsburg hold out until January of 2007, then any nominee to the Supreme Court selected by President Bush would probably not be confirmed by the Senate without strong evidence that he or she would not vote to overrule Roe v. Wade.

In 2007, every seat in the General Assembly is up for election. The balance of power in the state legislature might change sooner than the balance on the Supreme Court. I expect the Republican majorities to continue, but they are not inevitable.

In November 2008, the next president will be elected and another third of the Senate (something like 21 Republican and 12 Democrat seats) up for grabs. Even the Crystal Ball does not go so far. By that time, Justice Stevens will be 88 and Justice Ginsburg will be 75. The oldest sitting member in the history of the Supreme Court was Justice Holmes, who was age 90 when he left the Court.

As recorded here: "One of the first of many standard stories recounted about the Supreme Court tells how his brethren went to an aging Justice Oliver Wend[e]ll Holmes to get him to step down and reminded the justice of similar entreaties he had made to Justice Stephen Field nearly a half century prior. Holmes is said to have responded to his younger colleagues that he had never himself done a dirtier day[']s work." No such intervention is in the works for Justice Stevens. Stevens' influence on the Court has been at a high point in the last three terms (see here and here), managing to hold the majority in a number of important cases in which the Chief Justice dissented. I suspect that Justice Ginsburg, the old ACLU lawyer, would never retire by choice while Bush is president. Unlike Justices Brennan and Marshall in their later years, while both Stevens and Ginsburg are together on the Court and can convince Kennedy, Souter, and Breyer to join with them from time to time, they will not suffer the frustration of laboring in perpetual dissent, and so have every reason to stay on the Court, health permitting.

Roe will not disappear the moment that the hypothetical fifth anti-Roe vote is confirmed to the Court. Even if the some new group of Justices decides to overrule Roe, such a decision would not come for months if not years following changes in the Court's membership. Any Supreme Court case takes a long time. Few of the cases to be argued in the new term beginning in October will be decided before the 2006 General Assembly session begins.

Notwithstanding the relatively abrupt transition from Bowers v. Hardwick to Lawrence v. Texas after only 17 years, the Court rarely overturns a major precedent in one fell swoop. It took 58 years for the Court to get from Plessy v. Ferguson in increments to Brown v. Board of Education. The Court is supposed to decide constitutional issues on the narrowest possible grounds, and is limited to the cases that are brought before them. More likely than a straightforward reversal of Roe would be its incremental erosion, as different forms of more limited prohibitions percolate up through the courts. The Virginia partial-birth abortion statute passed in 2003, which has been thrown out by the lower federal courts, might be considered by the Supreme Court (if it chooses to hear it) - in the term beginning October 2006.

So, when exactly might Roe be overruled and abortion banned by the General Assembly? I have no idea - perhaps as soon as the 2007 legislative session, and perhaps never. The latter seems as likely as the former. The chance that the next Virginia governor would have to act on the scenario raised by Mr. Russert's question is extremely slim. Change in the constitutional law comes too slowly, and is affected by too many variables, for the question to have much practical relevance to this year's campaign - which is not to say that the discourse in political campaigns has ever had anything in particular to do with reality.