June 24, 2022: The Day Chief Justice Roberts Lost His Court
WASHINGTON — In the most significant case of his 17-year tenure, Chief Justice John G. Roberts Jr. all alone.
He had worked seven months to persuade his colleagues to join him in breaking down Roe v. Wade, the 1973 decision that established a constitutional right to abortion. But he was outflanked by the five judges to his right, who instead reduced Roe to rubble.
In doing so, they humiliated the court’s nominal leader and rejected key elements of his jurisprudence.
The moment was a turning point for the Chief Justice. Just two years ago, after Judge Anthony M. Kennedy retired and made him the new “swing justice,” he enforced a kind of influence that sent experts hunting for historical comparisons. Not since 1937 had the chief justice also been the focal point of the court, able to cast the decisive vote in deeply divided cases.
Chief Justice Roberts usually used that power to push the court to the right in measured steps, understanding himself as the custodian of the court’s prestige and authority. He avoided what he called shocks to the justice system, and he tried to decide cases closely.
But that was before a crucial switch. When Judge Amy Comey Barrett, a conservative appointed by President Donald J. Trump, succeeded Judge Ruth Bader Ginsburg, the liberal icon, after her death in 2020, Chief Justice Roberts’s power collapsed.
“This is no longer the court of John Roberts”, Mary Zieglersaid a law professor and historian at the University of California, Davis, Friday.
The Chief Justice is now in many ways a fringe figure. The five other conservatives are impatient and ambitious and do not need his vote to achieve their goals. Voting with the three liberals on the court can’t be a particularly attractive alternative to the chief justice, not least because it generally means losing.
In the end, the chief justice submitted a unanimous opinion in which he spoke for no one but himself.
“You may wonder if he’s still running the show,” said Allison Orr Larsena law professor at the College of William & Mary.
The Chief Justice will face other challenges. Although Majority Writing Judge Samuel A. Alito Jr. said that “nothing in this opinion should be taken to cast doubt on precedents not related to abortion,” both liberal and conservative members of the court expressed doubts. .
Judge Clarence Thomas, for example, wrote in a unanimous opinion that the court should set aside 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 said he was willing to uphold the Mississippi law at issue in the case, a law that banned most abortions after 15 weeks of pregnancy. The only question for the court was whether that law was constitutional, and he said it was.
“But that is all I would say,” he wrote, “under a simple but fundamental principle of judicial restraint: if there is no need to decide more to settle a case, then it is necessary not decide more.”
He reprimanded his colleagues on both sides of the matter for having unwarranted self-confidence.
“Both the court’s opinion and the disagreement show a relentless freedom of doubt on the legal issue that I cannot share,” he wrote. “For example, I’m not sure whether a ban on terminating a pregnancy from conception in the Constitution should be treated the same as a ban after 15 weeks.”
The failure of his proposed approach was telling, Professor Larsen said.
“It sounds like the judges are talking past each other,” she said. “There is very little evidence of moderation or limitation of grounds to accommodate another’s point of view.”
The chief justice acknowledged that his proposed ruling conflicted with the part of Roe v. Wade that said states should not ban abortions before fetal viability, around 23 weeks. He was willing to reject that rule. “The court today rightly rejects the arbitrary viability rule,” he wrote, noting that many developed countries have a 12-week limit.
But there was more to Roe than the viability line, Chief Justice Roberts wrote. The court should have stopped taking “the dramatic step of completely eliminating the abortion right first recognized in Roe,” he wrote.
Justice Alito rejected that approach.
“If we merely stated that Mississippi’s 15-week rule is constitutional, we would soon be called upon to pass the constitutionality of an arsenal of laws with shorter terms or no term at all,” he wrote. “The ‘measured course’ mapped out by the confluence would be full of turmoil until the court answered the question seeking to postpone the confluence.”
The Chief Justice’s proposal was characteristic of his cautious style, which has fallen out of favor with the court.
“Only where there is no valid narrower ground for decision do we need to address a broader issue, such as whether a constitutional decision should be quashed,” he wrote on Friday, citing his opinion in a 2007 campaign finance decision who planted the seeds that blossomed the Citizens United ruling in 2010.
That two-step approach was typical of Chief Justice Roberts.
The first step of the approach in 2007 frustrated Judge Antonin Scalia, who accused him in accordance of effectively ignoring an important precedent “without saying it”.
“This false judicial restraint is judicial embezzlement,” Judge Scalia, who died in 2016, wrote at the time. But Judge Scalia didn’t have the votes to push for speed. The current colleagues of Chief Justice Roberts do.
During his 2005 hearing, Chief Justice Roberts said the Supreme Court should be wary of overturning precedents, in part because it threatens the court’s legitimacy.
“It’s a shock to the justice system if you set a precedent aside,” he said. “Precedent plays an important role in promoting stability and balance.”
He used similar language when criticizing the majority on Friday.
“The court’s decision to overrule Roe and Casey is a serious shock to the justice system — no matter how you look at those cases,” he wrote. “A narrower decision to dismiss the misguided viability line would be significantly less troubling, and nothing more is needed to decide this case.”
There are certainly areas where there is little or no daylight between Chief Justice Roberts and his more conservative colleagues, including race, religion, voting rights and campaign finance. In other areas, such as in a death penalty decision on Thursday, he may be able to forge a coalition with the three Liberals and Judge Brett M. Kavanaugh.
But Chief Justice Roberts, 67, may have a hard time protecting the institutional values he touts. The court has been plagued by plummeting approval ratings, Friday’s leaked draft majority opinion, revelations about the efforts of Judge Thomas’ wife Virginia Thomas to undo the 2020 election, and Judge Thomas’s failures. to withdraw himself from a related matter.
Tensions are so high that federal officials this month arrested an armed man outside Judge Kavanaugh’s home and charged him with attempted murder of the judge. There have been protests outside the judges’ homes awaiting the Roe verdict. Ten days ago, Congress passed legislation extending police protection to the judges’ immediate families.
The climate — and a court that routinely divides big cases along party lines — has increasingly undermined Chief Justice Roberts’ public claims that the court is not political.
“We don’t work as Democrats or Republicans,” he said in 2016. Two years later, he reiterated that stance in an extraordinary rebuke of President Donald J. Trump after Mr. Trump responded to an administrative loss in a lower court by criticizing it. on the judge who issued it as an “Obama judge.”
“We don’t have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice Roberts said in a sharp public statement that nevertheless debunked substantial evidence to the contrary.
On Friday, all three Democratic nominees voted to repeal the Mississippi bill and all six Republicans voted to maintain it.
Despite his unified opinion and institutional impulses, Chief Justice Roberts may find it difficult to convince the public that party affiliations say nothing about how the judges do their jobs.