One of the things about yesterday’s Supreme Court decision obliterating the grotesque fiction that child-killing is a Constitutional right that struck even non-lawyers (thanks be to Heaven) like myself was the way that the concurring opinion written by Chief Justice John Roberts read much more like a dissent than the way it was billed.
The objection that Roberts raises to the reasoning in Dobbs is that it goes further than Roberts believes necessary. He’s willing to uphold the Mississippi law but he would just update the Roe/Casey mess with another rule. He agrees with the critique of Roe by the majority but doesn’t want to get rid of a constitutional right to infanticide. Rather than right a wrong decision, Roberts would rather make the decision only a little less wrong.
Roberts’ entire concurrence is embedded below.
As I said, I’m not a lawyer, but I don’t believe I’ve ever seen a Chief Justice’s opinion get a smackdown like this from other members of the majority he joined. Justice Alito succinctly summed up Roberts’ approach: “The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach.”
It is only a few pages long, but to understand its significance, you need to read it.
This is why I give more credit to Mitch McConnell (Love Him or Hate Him, Mitch McConnell Was the Key Man In Getting Rid of the National Shame of Roe and Casey) than to President Trump (Roe Is Dead, and We Have Trump to Thank for That). If Merrick Garland was on the Supreme Court, even with President Trump’s justices in place, the vote on Dobbs would have been 4-4. Based on Roberts’ concurrence, if he had to choose between striking down or upholding Roe, he would have voted to uphold it in its current form or with a 15-week carve-out for state intervention.
Roberts’ concurrence reads very much like that of a man who has lost control of the Court and the respect of his colleagues. The only reason I can see that Roberts concurred with the opinion is that he didn’t want to be repudiated by the Court in what will likely be the most significant decision of his tenure as Chief Justice.
Politico has an interesting piece on that subject headlined: The lonely chief: How John Roberts lost control of the court.
Yet, Roberts on Friday found himself alone. He tried to avoid the very fallout that he believed the court could have avoided by stopping short of overturning Roe, and seems keenly aware of how Americans view the Supreme Court. The court continues to drop in its approval ratings with the public and it can’t seem to escape the perception that the institution’s decisions are being driven by politics, not principle.
The snub Roberts suffered Friday would be humbling for any chief justice given the way in which abortion-related decisions bring a white-hot spotlight to the court. But it’s just the latest in a series of blows Roberts has sustained in recent weeks that have fueled doubts about his ability to manage an increasingly fractious court.
An earlier Politico article, What a Roberts compromise on abortion could look like, perhaps unwittingly points to why Roberts can’t lead a conservative majority.
While any ruling from Roberts ostensibly preserving Roe might temper the overall reaction to the court’s looming abortion decision, it would be viewed by many conservatives as just the latest betrayal of their movement and principles by the chief, who unexpectedly emerged as a swing justice on the court in a handful of major cases over the past decade. His decision in 2012 to join the court’s liberals and uphold the Affordable Care Act’s individual mandate profoundly disappointed many activists on the right who were expecting Roberts to help deliver a crippling blow to Obamacare.
Roberts also joined a 6-3 decision in 2015 that allowed Obamacare’s insurance subsidies to keep flowing nationwide — a ruling Justice Antonin Scalia dismissed as “pure applesauce.”
Since then, Roberts provided the critical vote to block President Donald Trump’s efforts to repeal deportation protections and other benefits for so-called Dreamers. The chief also sided with liberals to hold off a major challenge to government agencies’ regulatory powers and even wrote for the majority in a 5-4 decision rejecting the Trump administration’s efforts to add a question about citizenship to the 2020 census.
The bottom line is they don’t trust him and don’t trust his finger-in-the-wind incrementalism. The Court is clearly being led by the Thomas-Alito partnership that is providing the willpower and guts to motivate the conservative majority to decide cases based on the law and not worry about what the editorial boards of the Washington Post and New York Times say.