June 24, 2022: The Day Chief Justice Roberts Lost His Court

 

NEWS ANALYSIS

June 24, 2022: The Day Chief Justice Roberts Lost His Court

 

Outflanked by five impatient and ambitious justices to his right, the chief justice has become powerless to pursue his incremental approach.

 

Adam Liptak

By Adam Liptak

June 24, 2022

https://www.nytimes.com/2022/06/24/us/abortion-supreme-court-roberts.html

 

WASHINGTON — In the most important case of his 17-year tenure, Chief Justice John G. Roberts Jr. found himself entirely alone.

 

He had worked for seven months to persuade his colleagues to join him in merely chipping away at Roe v. Wade, the 1973 decision that established a constitutional right to abortion. But he was outflanked by the five justices to his right, who instead reduced Roe to rubble.

 

In the process, they humiliated the nominal leader of the court and rejected major elements of his jurisprudence.

 

The moment was a turning point for the chief justice. Just two years ago, after the retirement of Justice Anthony M. Kennedy made him the new swing justice, he commanded a kind of influence that sent experts hunting for historical comparisons. 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 the legal system, and he tried to decide cases narrowly.

 

But that was before a 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.

 

The chief justice is now in many ways a marginal figure. The five other conservatives are impatient and ambitious, and they do not need his vote 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.

 

Chief Justice Roberts’s concurring opinion in Friday’s decision, Dobbs v. Jackson Women’s Health Organization, illustrated his present and perhaps future unhappy lot. He had tried for seven months to persuade a single colleague to join his incremental approach in the case, starting with carefully planned questioning when the case was argued in December. He failed utterly.

 

In the end, the chief justice filed a concurring opinion in which he spoke for no one but himself.

 

“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.

 

The chief justice will face other challenges. 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 only question before the court was whether that law was constitutional, and he said it was.

 

“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 on both sides of the issue for possessing 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.”

 

The failure of his proposed approach was telling, Professor Larsen said.

 

“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.”

 

The chief justice acknowledged that his proposed ruling was at odds with the part of Roe v. Wade that said states may not ban abortions before fetal viability, around 23 weeks. He was prepared to discard that line. “The court rightly rejects the arbitrary viability rule today,” he wrote, noting that many developed nations use a 12-week cutoff.

 

But there was more to Roe than the viability line, Chief Justice Roberts wrote. 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 that 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.

 

That two-step approach was typical of Chief Justice Roberts.

 

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. But Justice Scalia did not have the votes to insist on 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.”

 

He used similar language in criticizing the majority on Friday.

 

“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, to be sure, areas in which 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, as in a death penalty decision on Thursday, he may be able to forge a coalition with the three liberals and Justice Brett M. Kavanaugh.

 

But Chief Justice Roberts, 67, may have a hard time protecting the institutional values he prizes. 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.

 

On Friday, all three Democratic appointees voted to strike down the Mississippi law and all six Republican ones voted to uphold it.

 

His concurring opinion and his institutionalist impulses notwithstanding, Chief Justice Roberts may have a hard time convincing the public that party affiliations say nothing about how the justices conduct their work.

 

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak • Facebook