An Ultimate (Judicial) Veto Point

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….

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2 Responses to An Ultimate (Judicial) Veto Point

  1. Historically this is what happened, but going through the process was pretty devastating to the people who went through it even when acquitted, at least according to historical case studies.

  2. Bern says:

    Mike, your last line made me smile, mournfully…

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