Of a sort. Looking at the reaction to Supreme Court Justice Brett Kavanaugh being heckled by protestors while dining at Morton’s Steakhouse (lots of ‘dining at Morton’s isn’t a right enumerated in the Constitution’ jokes, along with a healthy dose of ‘give the Supreme Court the same protection from heckling that abortion clinics receive’), I think we’re going to see the return of the ultimate check on all three branches: jury nullification, except this time it’s going to be used to stymie conservatives.

If it comes to pass, this won’t be a good state of affairs: historically, jury nullification was used to oppress minorities (i.e., letting murderers go free). But I don’t think the political system–or for that matter, the judicial system–has any idea what they might be walking into here, given the passion and immediacy surrounding abortion.

In most states, a majority wants abortion to be legal, with some late-term restrictions. That includes many red states (and in all states, a majority, even if it’s slim, of women want to keep abortion legal). I don’t see how, in even the most conservative states, being pro-choice by itself could be used to remove all pro-abortion rights jurors during voir dire. Obviously, there are some exceptions: the head of the local Planned Parenthood chapter probably would be excused. But there are enough people who favor legal and safe abortion who would wind up on a jury, and I think the anger is high enough–and will remain high enough–such that we could see hung juries.

But maybe the majority opinion in Dobbs is correct, and returning the right to a legal and safe abortion to the states will lead to more comity and less division….