June 24, 2022: The day Chief Justice Roberts lost his court

In the most important case of his 17-year tenure, Chief Justice John Roberts has found himself completely alone.

He worked for seven months to persuade colleagues to join him in simply abandoning Roe v. Wade, the 1973 decision that established a constitutional right to abortion. But the five judges to his right surrounded him, and instead he turned Roe into ruins.

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

This moment was a turning point for the Chief Justice. Just two years ago, after Judge Anthony Kennedy made him the new swing justice, he had the kind of effect that prompted experts to seek historical comparisons. Since 1937, the chief justice has also not been the court’s fulcrum, being able to cast a decisive vote in highly divided cases.

Roberts often used this power to push the court to the right in calculated steps, understanding himself as the guardian of the court’s prestige and power. He avoided what he called the vibrations of the judicial system, and tried to adjudicate cases narrowly.

Abortion rights advocates gather to protest outside the Utah State Capitol in Salt Lake City on Friday, June 24, 2022 (Kim Raff/New York Times)

But this was before a crucial shift. When Justice Amy Connie Barrett, a conservative appointed by former President Donald Trump, succeeded Justice Ruth Bader Ginsburg, a liberal icon, after her death in 2020, Roberts’ authority waned.

“This is no longer John Roberts Court,” Mary Ziegler, a law professor and historian at the University of California, Davis, said Friday.

The chief justice is now in many ways a marginal figure. The other five conservatives are impatient and ambitious and do not need his voice to achieve their goals. A vote with the Three Liberals on the court cannot be a particularly attractive alternative to the Chief Justice, not least because it means losing in general.

Roberts’ concurring opinion in Friday’s decision, Dobbs v. Jackson’s Women’s Health Organization, showed his present and possibly his unhappy future. For seven months he tried to persuade one colleague to join his piecemeal approach to the case, beginning with a carefully planned interrogation when the case was discussed in December. It failed miserably.

Anti-abortion protesters gather for prayer and celebration outside the Washington Supreme Court on Friday, June 24, 2022 (Shuran Huang/The New York Times)

In the end, the presiding judge gave a favorable opinion in which he spoke only for himself.

“That leaves one to wonder if he’s still running the show,” said Alison Orr-Larsen, professor of law at the College of William and Mary.

The chief justice will face other challenges. Although Justice Samuel Alito, writing for the majority, 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 skepticism.

Justice Clarence Thomas, for example, wrote in a consensual opinion that the court should continue to overturn three “clearly wrong decisions” — on same-sex marriage, same-sex intimacy, and contraception — based on the logic of the Friday opinion.

In Friday’s abortion decision, Roberts wrote that he was willing to keep the disputed Mississippi law in question, the law that prohibits most abortions after 15 weeks of pregnancy. The only question before the court was whether this law was constitutional, and he said so.

He wrote: “But that is all I can say, in keeping with a simple but essential principle of judicial restraint: if no more decisions are necessary to decide the case, it is necessary not to make more decisions.”

Abortion rights activists gather to protest in Manhattan on Friday, June 24, 2022 (Gina Moon/The New York Times)

He reprimanded his colleagues on both sides of the case for having unjustified self-confidence.

“The court’s opinion and the opposition show an uncompromising freedom from skepticism about a legal issue that I cannot share,” he wrote. “I am not sure, for example, that a ban on termination of pregnancy from the moment of conception should be treated under the Constitution in the same way as a ban after 15 weeks.”

Larsen said the failure of his proposed approach was certain.

“It seems that the judges are talking among themselves,” she said. “There is very little evidence of moderation or narrowing of grounds to accommodate other people’s point of view.”

The chief justice acknowledged that his proposed ruling conflicts with the part of Roe v. Wade that said states may not ban abortions before the fetus has survived, about 23 weeks. He was willing to ignore that line. “The Court today rejects the truly arbitrary feasibility rule,” he wrote, noting that many developed countries use 12 weeks of hiatus.

Roberts wrote that there was more to Roe than the feasibility line. He wrote that the court should have stopped taking the “dramatic step of completely eliminating the right to abortion first recognized in Rowe”.

Alito rejected this approach.

“If we only saw the 15-week Mississippi rule as constitutional, we would soon ask for the constitutionality of a whole set of laws to be passed with shorter deadlines or no deadline at all,” he wrote. The “measured path” charted by the agreement will be fraught with turmoil until the court answers the question the agreement seeks to postpone. “

The chief justice’s suggestion was characteristic of his cautious style, which was not well received in court.

He wrote Friday, citing his opinion of the 2007 campaign funding decision that sowed the seeds that blossomed into Citizens United’s decision in 2010.

This two-step approach was typical of Roberts.

The first step of the approach in 2007 frustrated Judge Antonin Scalia, who accused him of agreeing to set aside a major precedent “without saying it.”

Abortion rights activists gather to protest in Manhattan on Friday, June 24, 2022 (Gina Moon/The New York Times)

Scalia, who died in 2016, wrote at the time: “This false judicial limitation is judicial obfuscation.” But Scalia didn’t have the votes to insist on speed. Roberts’ current colleagues are doing just that.

Roberts, in his 2005 endorsement hearing, said the Supreme Court should be wary of overturning case law, in part because doing so threatens the court’s legitimacy.

“It’s a shock to the legal system when you overturn a precedent,” he said. “Precedent plays an important role in promoting stability and equity.”

He used similar language in criticizing the majority Friday.

“The court’s decision to overturn Roe and Casey is a serious shake-up to the legal system – no matter how you see those issues,” he wrote. “A narrower decision rejecting a misleading feasibility line would be significantly less worrisome, and nothing else is needed to decide in this case.”

There are, to be sure, areas where there is little or no daylight between Roberts and his more conservative colleagues, including race, religion, voting rights, and campaign finance. In other areas, as in Thursday’s death penalty ruling, he may be able to form an alliance with the Three Liberals and Justice Brett Kavanaugh.

But Roberts, 67, may find it difficult to protect the corporate values ​​he cherishes. The court was hit by low approval ratings, due to Friday’s leaked draft of the majority opinion, by revealing efforts by Virginia Thomas, wife of Clarence Thomas, to nullify the 2020 election, and Thomas’ failure to disqualify himself from a relevant case.

The Supreme Court on Friday overturned Roe v. Wade, overturning the constitutional right to abortion after nearly 50 years. (Morgan Lieberman/The New York Times)

Tensions are so high that federal officials this month arrested an armed man outside Kavanaugh’s home and accused him of trying to kill justice. There were protests outside the judges’ homes in anticipation of Roe’s decision. Ten days ago, Congress approved legislation extending police protections to the families of direct judges.

The climate — and the court routinely divided along partisan lines on major cases — has increasingly undermined Roberts’ public assertions that the court is not political.

“We don’t operate as Democrats or Republicans,” he said in 2016. Two years later, he reiterated that position in an unusual rebuke to President Donald Trump after Trump responded to the administration’s loss in a lower court by criticizing the judge who decreed he was an “Obama judge.”

“We don’t have Obama judges or Trump judges, or Bush judges or Clinton judges,” Roberts said in a sharp public statement, yet she contested substantial evidence to the contrary.

On Friday, all three Democratic appointees voted to repeal the Mississippi law and all six Republicans voted to support it.

Regardless of his favorable opinion and institutional motives, Roberts may find it difficult to convince the public that party affiliations say nothing about how judges do their work.

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