Why Larry Tribe expects “blood in the streets”

Overturning Roe v. Wade could be just the beginning. Find out why one of the country's foremost constitutional law scholars thinks America may be close to a kind of civil war.

Over the past week, Unprecedented spoke to several top constitutional law scholars to determine what the Supreme Court might make of a federal law on abortion — either one that bans it nationwide, or one that codifies Roe v. Wade and other constitutional protections into law.

The consensus was that whether the Supreme Court upholds the law might depend less on the justices’ understanding of the Constitution, and more on their individual policy preferences.

Harvard Law Professor Emeritus Laurence Tribe, in particular, was troubled by what he perceives as a double standard that could lead to the justices approving a national ban on abortion, but striking down codification of abortion rights — even though both legislative attempts would likely be based on, as Tribe put it, “essentially identical exercises of the commerce power.”

“So what we now confront,” Tribe told Unprecedented, “is a horizon with a kind of double standard for what the commerce power would let Congress achieve, and with a fairly clear outcome — unless the composition of the court is changed — that abortion will not be legal in America, even in the blue states, unless the Democrats hold on to the House and hold on to the Senate.”

In this lightly edited transcript, I pressed Tribe on why he no longer has faith in an institution to which he’s devoted so much of his life studying.

Matthew Schwartz: You sound jaded, professor.

Larry Tribe: It's taken me 50 years to get here, but I'm simply being realistic. I have never never read the tea leaves of the Supreme Court to accord with my own ideal beliefs. When the court was quite conservative, I figured out lots of ways to win victories there. But I see the handwriting on the wall, and I think it's not really being jaded or cynical; it's a matter of realism.