since I don't think Roberts votes to overturn Roe.
What makes you think that? Roberts has sided with the liberals from time to time, but you'll notice that when he sides with them, it's usually in deference to the other branches. Being a proponent of judicial modesty is hardly at odds with overturning one of the most immodest rulings ever.
Nothing specific. It's just a hunch. Maybe I got that impression about him after the rumor came out that he originally wanted to strike down the ACA in Sebelius but changed his mind at the last minute.
In regards to abortion though, I had a couple thoughts about this. I typically hate discussing abortion, and avoid discussion of it all costs, but I don't really mind talking about it, in terms of political strategy.
I alluded to this above, but to elaborate a bit: I just don't think this is the issue the GOP wants to draw the line in the sand on. By that, I mean refusing to confirm a justice that won't pledge to overturn Roe. I see little upside to this, and a significant amount of downside. For Scalia's replacement, I think it's probably OK to insist on a more arch-conservative type figure. I'd actually even be fine with Pryor. I'm talking more about subsequent nominations.
Now, unlike gay marriage, which is a dead issue, abortion is an issue that is still relatively close to split nationally, depending on what polls you look at. So one could be fooled into thinking this is a good idea for the GOP. But there are a LOT of problems with it. First, I'm not particularly sure what overturning Roe accomplishes. To some extent, Roe has already been overturned, at least in a practical sense, by Casey in '92. That case made the types of restrictions that most people agree on constitutional, and set up some standards for evaluating these restrictions, so I feel that we've reached sort of a "truce," nation-wide, on abortion, so to speak. All overturning Roe would do is essentially shift it back to the states, and most states would continue the status quo, outside of maybe a dozen or so, mainly in the South and rural West. Practically speaking, people would still get abortions, they would just go to a different state to do it. So "overturning Roe," I think is a bit of a canard for the pro-life crowd.. it's not like doing so would suddenly make abortion illegal across the country.
So, one might ask then- why not just kick it back to the states? Well, the problem is, by overturning the decision, regardless of what actual practical effect it would have on abortion nation-wide (probably little), what it would do is completely change the national debate overnight to whether overturning Roe was a good idea or not. It'd become this albatross around the neck of every GOP candidate nation-wide, no matter what their stance was on it, regardless of whether they had a nuanced position or not. It'd be sorta similar to the Iraq War in '08, when basically everyone in the GOP was forced into the position of having to defend it, even if they weren't all-in on the Bush Doctrine. The Democrats' campaign in '20 would be non-stop, "you hate women" and pointing to overturning Roe. And regardless if it's true that such an overturn really hurts women or not, it'd be a little different than the Chicken Little cries of the Huff Post bloggers that we saw this year, because in this case, said bloggers would actually have something real to point to and concoct all sorts of bullsh-t reasons why the overturn equals the doom of mankind as we know it.
In other words, I think pushing for a Roe overturn is overplaying our hand. We have the Senate, the House, the Presidency, and can likely get the Court here soon. Let's be smart about what issues we push. We have the opportunity to push for some agenda items that could really make significant changes in this country. Speaking of immigration, that's actually one of them, and that's an issue that we have a lot more popular support on our side. Some serious reform would not only be good for the country, but just from a partisan standpoint, finding a way to gently pause demographic change is good for GOP election chances as well. If we choose to really focus on immigration, we can keep the Democrats from creating a permanent underclass that votes 90% Democrat. I don't see the same benefits from pushing a Roe overturn. Or take another issue, like trade. Reforming trade could potentially lock up the Rust Belt for a generation for the GOP. There are plenty of issues like this, I just really hope the GOP Senate doesn't insist on the litmus test when it comes to replacing Ginsburg. Let's get a justice that may not overturn Roe, but at least won't invent any other new constitutional rights and we get 90% of what we want, without turning the 2020 election into a non-stop abortion debate.
I mean, look. I get it. I despise Roe. As an attorney, I find it just a wretched opinion, and one that set an unfortunate precedent of inventing random constitutional rights that had no support in the text (and I'm not the only one saying this, plenty of liberal constitutional scholars say the same thing). And I'm pro-choice. In fact, I'm pro-abortion. But, I can recognize a piece of tortured legal reasoning when I see it.
But, that being said, I just don't see what we get from trying to overturn it. Abortion would be legal most places anyway, we would significantly risk 2020, and we would lose capital that could go towards a lot more important things like immigration and trade. Not to mention a lot of what conservatives want on this issue were already made constitutionally permissible under Casey.