Pay Attention. The Supreme Court Is Talking About Abortion.

(Bloomberg Opinion) -- It was easy to miss in the middle of our Covid-19 madness — but this week, the Supreme Court issued its most interesting decision of its current term so far.

At issue was whether it’s constitutional for a state to allow for criminal conviction on a 10-2 jury verdict instead of requiring unanimity. But that wasn’t what made the case interesting.

Rather, the case, Ramos v. Louisiana, featured heated disputes that, for once, split the court not along squarely ideological lines — but across them.

One argument was about whether a law’s racist historical origins are relevant to its constitutionality when there are modern, nonracist reasons for it. The other was about when the principle of judicial precedent should lead the court to uphold a prior decision even if it considers the decision weak or wrong.

Both disputes will have long-term consequences — and the latter sheds some light on the perennial question of whether and when the court might overturn Roe v. Wade, the 1973 decision that recognized a legal right to abortion.

Two states, Louisiana and Oregon, have allowed for split-verdict criminal convictions. (Louisiana recently abolished the practice, but Ramos v. Lousiana arose before that happened.) Writing for the majority of the court, Justice Neil Gorsuch held that those laws are unconstitutional, because the Sixth Amendment jury trial right includes an implicit guarantee of jury unanimity.

In his opinion, Gorsuch emphasized that both states demonstrated a history of racism in enacting their laws. Louisiana did so in 1898 as part of a state constitutional convention that was convened “to establish the supremacy of the white race” by suppressing African-Americans’ rights. The 10-2 rule was designed to make sure that one or two African-Americans on a jury couldn’t block the conviction of an African-American defendant. Oregon’s law was adopted in 1930s, apparently under the influence of the Ku Klux Klan’s efforts to “dilute ‘the influence of racial, ethnic, and religious minorities on Oregon juries.’”

The racist origin of these laws was not the only reason Gorsuch gave for rejecting split verdicts. But he argued that their racism provided a reason to discount a prior court decision, issued in 1972, that upheld the use of split-jury verdicts.

Important parts of Gorsuch’s opinion were joined by a striking mix of justices: liberals Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor; but also, conservative Brett Kavanaugh. Archconservative Justice Clarence Thomas joined the result, although he wrote a separate opinion for obscure technical reasons having to do with his interpretation of how the 14th amendment applies the Bill of Rights to the states.

Justice Samuel Alito, another staunch conservative who often votes with Gorsuch, dissented sharply. Alito harshly rejected the idea that the racist origin of the split verdict rules should matter given that there are good contemporary, nonracist reasons for it and that both states reenacted their rules in the modern era. The British Parliament adopted a similar rule in 1967, he pointed out, asking rhetorically, “Was Parliament under the sway of the Klan?”

Alito also condemned Gorsuch’s reliance on the racist history as an instance of the ad hominem fallacy, which discredits an argument based not on its content but on the identity of its author. For good measure, he basically accused Gorsuch of political correctness, saying that the court “should set an example of rational and civil discourse instead of contributing to the worst current trends.”

Then there was the precedent problem. Gorsuch rejected the 1972 case on several grounds, including claiming that it didn’t really form a precedent at all. Yet he also took pains to argue that the court shouldn’t take precedent too seriously when the justices think it’s wrong as a matter of constitutional law.

Kavanaugh went even further. He wrote a separate, 18-page concurrence — the most significant piece of writing he’s done since joining the court — setting out what he considered his “roadmap” for when the court should overturn precedent. He boiled it down to three principles: Is the precedent not just wrong but egregiously wrong? Has it caused significant negative consequences for the world or the law? And would overruling the precedent upset settled “reliance interests” — e.g., existing laws and settled ways of doing things that rely on that precedent?

It’s hard not to see Kavanaugh’s opinion as a trial balloon for overturning Roe. That interpretation would explain why Justice Elena Kagan, a pragmatist and coalition-builder, joined Alito’s dissent — alongside Chief Justice John Roberts.

It’s not that Kagan thinks Alito would rely on precedent to uphold Roe. She knows he wouldn’t. Rather, it’s that Roberts, the justice who cares most about precedent right now, might be the swing vote who could save Roe — not because he thinks it’s correct, but because it’s been settled law for nearly half a century.

By sticking to Roberts’s side, Kagan made sure the current decision didn’t feature all the liberals on the same side while the conservatives split. More importantly, she made sure that at least one liberal was standing up for precedent even in a case where liberals would ordinarily favor the opposite result. That’s exactly the stance that she and other liberals will want Roberts to take when the court’s other conservatives make their increasingly inevitable push to overturn Roe.

Kavanaugh’s concurring opinion strongly suggests that he’s got Roe on the brain. It’s still not utterly inconceivable that he might stand with Roberts if the chief justice refuses to overturn Roe. But the odds of Kavanaugh doing so are definitely lower now than they were before.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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