Let's not forget what else is going on in the world. Today, the S.Ct. heard its first abortion case with Alito and Roberts on the bench. It concerns the legality of the Partial-Birth Abortion Ban Act of 2003.
As background, the S.Ct. was certainly aware of the Democratic victory in the election, and probably knew that South Dakota voters repealed a state law that virtually outlaws abortions, and California and Oregon voters rejected measures that would have required that teenagers get their parents' consent before having an abortion.
But, the S.Ct. should not be, and probably is not, swayed by voter sentiment. Kennedy is the swing vote on all abortion cases because Alito, Thomas, Scalia and Roberts will vote against abortion rights. And Kennedy has already ruled in a prior case that he believed laws like the one under review pass Constitutional muster. Thus, abortion opponents are confident the law will survive.
So what happened today?
Thomas was sick and skipped the argument. Alito, unbelievably, sat silently for the duration of the two hour hearing. Perhaps he was assuming Thomas' role.
Kennedy is the swing vote. And guess what?
He dropped hint after hint that he would find the law at issue unConstitutional. This is HUGE! As explained by Scotusblog:
Justice Anthony M. Kennedy, proceeding calmly, cautiously and analytically, left the clear impression on Wednesday that his vote may be available to strike down Congress' first attempt to impose a nationwide ban on an abortion procedure -- even though the procedure at issue is one that Kennedy has suggested is morally repugnant. In two hours of argument on abortion procedures, overwhelmingly dominated by analysis of medical procedures and barely touching basic separation-of-powers questions, Kennedy dropped suggestive hints one after the other that he is troubled by what Congress attempted in the Partial-Birth Abortion Ban Act of 2003.
His vote -- potentially decisive because four Justices who had voted in 2000 to strike down a somewhat similar state ban seemed unlikely to find the federal ban to be different in a constitutionally significant way -- very likely will depend in the end on how opinions are drafted and negotiated along the way toward decisions in the cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382). But, at least during oral argument, Kennedy seemed unpersuaded that Congress either had succeeded in making its ban narrow enough to be upheld without disturbing the core right to abortion, or that, if upheld as written, it could ever be challenged at a time when such a ban would genuinely threaten the health of pregnant women seeking abortions.
If Kennedy indeed rules to strike down the Partial Birth Abortion Act, this issue will move front and center in 2008. Social conservatives seek to use it as a wedge issue to pry away moderate votes from the Dems. And Dem contenders will likely find themselves jockeying on the issue, either triangulating by supporting limitations on the so-called partial birth abortion technique, or playing to the left in anticipation of the primaries.
There are a lot of balls in the air.
We've got to keep our eyes on them.
The election's over.