Former independent counsel Ken Starr told Fox News’ “Your World” that it would “folly to predict” that a potential right-leaning 6-3 Supreme Court majority would overturn Roe v. Wade.
“Abortion is what this is really all about, and Roe v. Wade,” Starr told anchor Neil Cavuto in a Thursday afternoon interview. “But here too you have voices on both sides of the ideological aisle saying stare decisis, stay the course, don’t overrule cases is very, very important.”
“And so it’s folly, I think, to predict going in how a ‘conservative’ court that might think Roe v. Wade was wrongly decided would in fact deal with it because Roe v. Wade has been on the books for a half century, and that is a real factor that will be weighing in the balance for any and all of the justices,” he continued.
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“Chief Justice Roberts has been the leader of those who say we have to take our precedents seriously, even if we disagree with them,” Starr said. “And not everybody agrees with that. Justice Thomas doesn’t agree with that, etcetera, but the Chief Justice of the United States is a huge a voice in favor of staying the course, except for the most extraordinary reasons.”
Starr’s analysis came as the Republican-controlled Senate intends to hold confirmation hearings for President Donald Trump’s pick to fill the seat of the late Justice Ruth Bader Ginsburg. Some Democrats have promised to take extraordinary measures to combat this, including packing the courts if they retake the Senate and White House.
Calling the idea “extraordinary,” Starr contended that Americans are “tuning in” to the notion as “a radical and bad idea for the country and certainly for the Supreme Court.” (RELATED: Flashback: Former Justice Antonin Scalia Revealed Who He Wanted To Replace Him During Obama Presidency)
The former independent counsel explained why the concept of nine justices was ultimately settled on in 1869.
“It’s a small enough number so that you can get everyone around the table in a collegial way and to actually have discussion, not simply give speeches,” he said before explaining that packing the courts would expand “dramatically the size of the court and it becomes more of a legislative institution, almost a legislative committee.”
“That’s not the way the court operates and has never operated,” Starr said. “It’s always been single digits. Why? Because collegial and collegial discussion through a reasoned process of conversation is the right way to adjudicate cases.”