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Cotton Predicts Supreme Court Will Overturn Roe v. Wade

Senator criticized 'pressure from social elites' in remarks obtained by the Free Beacon

Sen. Tom Cotton (R., Ark.) / Getty Images
• September 22, 2021 1:10 pm

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Sen. Tom Cotton (R., Ark.) told attendees at a Federalist Society conference this week that he expects the Supreme Court will overturn Roe v. Wade, given that a majority of its members profess to be textualists and originalists.

The senator this week delivered remarks at the University Club of Washington, D.C. The speech covered a range of legal topics, including a case the justices will hear in December that asks whether Roe should be overturned. The event was closed to the press, but a source in the room conveyed portions of Cotton's remarks to the Washington Free Beacon.

Cotton's comments come amid a budding influence campaign around the December case, Dobbs v. Jackson Women's Health Center. Judicial liberals have divided over strategies for protecting abortion rights before the conservative Court. Some pro-abortion activists, such as the 50-odd demonstrators who picketed Justice Brett Kavanaugh's home on Sept. 15, favor direct political action against the justices themselves. Others recommend a conciliatory approach.

"The only thing standing in the way of justices doing the right thing is the intense social pressure of liberal elites," Cotton told conference attendees.

"Now is the time for true friends of the Constitution to speak up," he added.

The Court's abortion precedents, Cotton said, reflect a tendency of past courts to cater to the values of an in-group of professors, advocacy organizations, and well-paid lawyers who can influence judicial business. Today, he added, a majority of justices purport to be committed textualists and originalists, and he expects that a straightforward application of those methods will lead the Court to overturn Roe.

The kind of peer pressure Cotton decried is manifesting in the Dobbs case. The American Bar Association, a premier lawyers group, on Monday filed an amicus (or "friend of the Court") brief that urged the justices to retain Roe. The brief warned that a contrary decision would severely damage the rule of law and the public's perception of the Court as a non-political institution. The American Bar Association represents approximately 60,000 lawyers and is influential in judicial selection, particularly under Democratic presidents.

A number of prominent law professors, among them current and former deans of top law schools, continued in a similar vein in a second amicus brief filed Monday. They predicted a victory for Mississippi will erode "the bedrock of [the Court's] legitimacy."

Warnings like Cotton's usually factor in the Court's abortion opinions, albeit obliquely. Justice Neil Gorsuch in a 2020 dissent raised doubts about the Court's "willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom."

The question in the Mississippi case is whether a state law that bans abortion after 15 weeks is constitutional. After the Supreme Court agreed to hear the case, lawyers for Mississippi urged the justices to overturn Roe outright. A clinic in Jackson, Miss., that is challenging the law filed its response on Sept. 14 and urged the Court to maintain the legal framework for abortion regulations without any changes.

The Supreme Court will hear arguments in Dobbs on Dec. 1.