WASHINGTON — In the most important case of his 17-year tenure, Chief Justice John G. Roberts Jr. found himself entirely alone.
He had been trying for seven months to convince his colleagues to join him in only chipping away Roe v. Wade. This 1973 decision established a constitutional rights to abortion. He was outflanked however by the five justices to him right, who instead reduced Roe v. Wade to rubble.
They humiliated and rejected major elements in his jurisprudence.
This moment was a turning point in the career of the chief justice. Two years ago, Justice Anthony M. Kennedy retired, making him the new swing judge. This gave him a level of influence that sent historians on the hunt for historical parallels. Not since 1937 had the chief justice also been the court’s fulcrum, able to cast the decisive vote in closely divided cases.
Chief Justice Roberts mostly used that power to nudge the court to the right in measured steps, understanding himself to be the custodian of the court’s prestige and authority. He avoided what he called “jolts to law system” and tried to narrowly decide cases.
But that was before the crucial switch. When Justice Amy Coney Barrett, a conservative appointed by President Donald J. Trump, succeeded Justice Ruth Bader Ginsburg, the liberal icon, after her death in 2020, Chief Justice Roberts’s power fizzled.
“This is no longer John Roberts’s court,” Mary Ziegler, a law professor and historian at the University of California, Davis, said on Friday.
In many ways, the chief justice is now a marginal figure. The five other conservatives are ambitious and impatient and do not need his support to achieve their goals. Voting with the court’s three liberals cannot be a particularly appealing alternative for the chief justice, not least because it generally means losing.
The chief justice filed an concurring opinion, in which he spoke for himself only.
“It leaves one to wonder whether he is still running the show,” said Allison Orr Larsen, a law professor at the College of William & Mary.
Other challenges await the chief justice. Though Justice Samuel A. Alito Jr., writing for the majority, said that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” both liberal and conservative members of the court expressed doubts.
Justice Clarence Thomas, for instance, wrote in a concurring opinion that the court should go on to overrule three “demonstrably erroneous decisions” — on same-sex marriage, gay intimacy and contraception — based on the logic of Friday’s opinion.
In Friday’s abortion decision, Chief Justice Roberts wrote that he was ready to sustain the Mississippi law at issue in the case, one that banned most abortions after 15 weeks of pregnancy. The court had to decide if that law was constitutional. He answered it.
“But that is all I would say,” he wrote, “out of adherence to a simple yet fundamental principle of judicial restraint: If it is Not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
He chastised his colleagues from both sides of the debate for having unwarranted self confidence.
“Both the court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share,” he wrote. “I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after 15 weeks.”
Professor Larsen stated that the failure of his approach was telling.
“It sounds like the justices are talking past each other,” she said. “There is very little evidence of moderation or narrowing grounds to accommodate another’s point of view.”
Chief justice acknowledged that his proposed ruling was not in line with Roe v. Wade’s provision that states cannot ban abortions before fetal viability (around 23 weeks). He was open to reversing that line. “The court rightly rejects the arbitrary viability rule today,” he wrote, noting that many developed nations use a 12-week cutoff.
Chief Justice Roberts said that Roe had more to it than the viability line. The court should have stopped short, he wrote, of taking “the dramatic step of altogether eliminating the abortion right first recognized in Roe.”
Justice Alito rejected this approach.
“If we held only that Mississippi’s 15-week rule is constitutional, we would soon be called upon to pass on the constitutionality of a panoply of laws with shorter deadlines or no deadline at all,” he wrote. “The ‘measured course’ charted by the concurrence would be fraught with turmoil until the court answered the question that the concurrence seeks to defer.”
The chief justice’s proposal was characteristic of his cautious style, one that has fallen out of favor at the court.
“It is only where there is no valid narrower ground of decision that we should go on to address a broader issue, such as whether a constitutional decision should be overturned,” he wrote on Friday, citing his opinion in a 2007 campaign finance decision that planted the seeds that blossomed into the Citizens United ruling in 2010.
Chief Justice Roberts was a fan of this two-step approach.
The first step of the approach in 2007 frustrated Justice Antonin Scalia, who accused him in a concurrence of effectively overruling a major precedent “without saying so.”
“This faux judicial restraint is judicial obfuscation,” Justice Scalia, who died in 2016, wrote at the time. Justice Scalia didn’t have the votes to insist upon speed. Chief Justice Roberts’s current colleagues do.
At his confirmation hearing in 2005, Chief Justice Roberts said the Supreme Court should be wary of overturning precedents, in part because doing so threatens the court’s legitimacy.
“It is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness.”
On Friday, he used similar language to criticize the majority.
“The court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases,” he wrote. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
There are areas in which Chief Justice Roberts and his more conservative counterparts have little or no daylight, such as race, religion and campaign finance. He may be able, in other areas, such as the Thursday death penalty decision, to form a coalition with Justice Brett M. Kavanaugh and the three liberals.
Chief Justice Roberts, at 67, may have trouble protecting the institutional values that he cherishes. The court has been buffeted by plummeting approval ratings, by the leaked draft of Friday’s majority opinion, by revelations about the efforts of Virginia Thomas, the wife of Justice Thomas, to overturn the 2020 election, and by Justice Thomas’s failure to recuse himself from a related case.
Tensions are so high that federal officials arrested an armed man this month outside Justice Kavanaugh’s home and charged him with trying to kill the justice. There have been protests outside the justices’ homes in anticipation of the Roe ruling. Ten days ago, Congress approved legislation extending police protection to the justices’ immediate families.
The climate — and a court that routinely divides along partisan lines in major cases — has increasingly undercut Chief Justice Roberts’s public assertions that the court is not political.
“We don’t work as Democrats or Republicans,” he said in 2016. Two years later, he reiterated that position in an extraordinary rebuke of President Donald J. Trump after Mr. Trump responded to an administration loss in a lower court by criticizing the judge who issued it as an “Obama judge.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice Roberts said in a sharp public statement that nonetheless went against substantial evidence to the contrary even then.
Friday’s vote was split between the three Democratic appointees voting to repeal the Mississippi law and six Republican appointees voting to keep it.
Chief Justice Roberts might have trouble convincing the public that party affiliations don’t affect how justices conduct their work, despite his concurring opinion.
Source: NY Times
