A Little Math on Roe v. Wade and the Supreme Court

by Gretchen Borchelt, Senior Counsel
National Women’s Law Center

According to a speech Justice Ginsburg gave on Sunday, she doesn’t think the Court will overrule Roe v. Wade.  I wish I could be as optimistic.  But when I do the math, I get a different answer:

# 1: In Gonzales v. Carhart, Justices Kennedy, Roberts, and Alito refused to reaffirm Roe.

# 2: Chief Justice Roberts and Justice Alito have anti-choice records.

# 3: Justices Scalia and Thomas repeatedly say that Roe was wrongly decided and should be overruled.

By my count, #1 + #2 + #3 = Roe hanging by a one-vote thread.  That is, Justices Scalia and Thomas are open about their desire to overturn Roe. All indications point to Justices Roberts and Alito agreeing with them.  It is only Justice Kennedy – who helped gut Roe in Gonzales but hasn’t said he would overturn it entirely – who keeps Roe alive.

And here’s a little extra credit: What is 70 + 4?  The average age (74) of the four remaining Justices who have voted to uphold the core principle of Roe v. Wade – Justices Ginsburg, Stevens, Souter, and Breyer. 

That means that upon the departure of one of these four or Justice Kennedy, his or her replacement could then provide the fifth vote to overturn Roe altogether. 

According to my math, Roe v. Wade is in danger.  But perhaps Justice Ginsburg is using a new mathematical formula I don’t know about.  I sure hope so.