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Everyone is rightly focused on Justice Kavanaugh's written dissent last night, but Justice Gorsuch's silent dissent (along with Thomas and Alito) shouldn't sneak under the radar. 1/
Like Kavanaugh, Gorsuch insisted in his confirmation hearings that Roe v Wade is "the law of the land" and a precedent with "intrinsic"
and "instrumental" value that aids in "the determinacy of law". 2/ washingtonpost.com/video/politics…
and "instrumental" value that aids in "the determinacy of law". 2/ washingtonpost.com/video/politics…
Yet last night, his vote showed he had no problem with an abortion-clinic regulation that's indistinguishable from a Texas law SCOTUS struck down as unconstitutional in 2016. 3/
Justice Kavanaugh's dissent was rather disingenuous. But at least he gave lip service to the notion that the 2016 ruling in Whole Woman's Health was "governing precedent" and that the Louisiana law might be unconstitutional after the facts all come in. 4/
In deciding not to sign on to his fellow Trump nominee's dissent, Justice Gorsuch implicitly staked out far more radical ground: that no matter the facts, he'd let the onerous regulations go into effect, resulting in the reduction of abortion providers in the state to one. 5/
If Gorsuch is unwilling to stand by the 2016 precedent, there's very little reason to believe he'll respect the 1973 precedent of Roe v Wade in practice, no matter what noises he made to the contrary in his Senate confirmation hearings. 6/
That's not much of a surprise, given his commitment to natural law theory (see my 2017 piece below), but it's worth noting as this is Gorsuch's first real vote in a high-stakes abortion case. 7/7 economist.com/democracy-in-a…
