Chief Justice Roberts wanted to go slow curbing Roe v. Wade. His colleagues were in a hurry.
The blockbuster abortion decision raised questions about Chief Justice John Roberts' grip on the Supreme Court and whether his fellow conservatives are speeding past his incrementalist approach.
- Chief Justice John Roberts didn't join the court's majority in overturning Roe v. Wade.
- The chief justice wrote an opinion saying he supported Mississippi's ban on abortion after 15 weeks of pregnancy.
- Roberts lost his status as the swing vote when Justice Amy Coney Barrett joined the high court.
WASHINGTON – In the weeks leading up to the Supreme Court's monumental decision to overturn Roe v. Wade, speculation began to swirl around a man who for years literally and figuratively sat at the center of the nation's highest court: Chief Justice John Roberts.
No longer the court's median justice, and without any real power over his eight colleagues, Roberts, 67, had nevertheless demonstrated a prowess of building slim majorities around narrow rulings in the past – the kind of incremental outcomes that left neither liberals nor conservatives particularly happy when the court wrapped up each term.
Maybe, experts suggested, Roberts would find a way to save Roe.
But those kinds of predictions were dashed this week with a ruling that whisked away the constitutional right to abortion. Applauded by the right and decried on the left, the ruling raised fundamental questions about whether Roberts' go-slow approach is dead and whether the Supreme Court, under his leadership, is being drawn into the kind of partisan fray he has spent 17 years trying to avoid.
"He's had this kind of tidal wave against him," said Glenn Cohen, a professor and deputy dean at Harvard Law School. "People who know him well describe him more than anything else as an institutionalist. And I think this is exactly what he does not like to see happen in terms of the status of the court and its role in the political system."
It was only two years ago that Roberts, nominated by President George W. Bush in 2005, cast a deciding vote in the court's last major abortion firestorm, a 5-4 decision that struck down a Louisiana law limiting the procedure. Eight years before that, Roberts was begrudgingly credited on the left – and widely panned on the right – for saving President Barack Obama's national health care law by joining with the court's liberals.
The biggest factor that changed since those years is the court's composition: President Donald Trump's nomination of Associate Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett gave conservatives a 6-3 edge for the first time in decades. Roberts, suddenly, was no longer a swing vote – and his conservative colleagues no longer needed him to move the court and the law to the right.
On Friday, the chief justice didn't join the majority to overturn Roe. Instead, he articulated what some saw as the centrist's position: He wanted to uphold the Mississippi ban on most abortions after 15 weeks of pregnancy at issue in the case, but not overrule one of the Supreme Court's best recognized precedents.
No other justice joined his opinion.
Some had speculated whether, after a draft opinion in the case leaked last month, Roberts was attempting to convince Kavanaugh or Barrett behind the scenes to join his opinion – appealing to the notion of honoring precedent even if they disagreed with it. He had signaled his support for that very idea during oral arguments in December.
But if that lobbying effort took place, it failed spectacularly.
"To write alone is truly kind of interesting as the chief," Cohen said. "One feels a little bit that this is his moment of shouting into the desert as a judicial minimalist."
The abortion decision appeared to be the latest indication the court's ascendant conservatives – led by Associate Justice Clarence Thomas – are beginning to flex their muscle. The decisions may represent a shift away from Roberts' incrementalism to a much faster rightward turn.
Good, say some conservatives who saw Roberts' approach as a wishy-washy attempt to avoid controversy. It was the 1973 Roe decision itself, those advocates say, that brought politics to the Supreme Court. And the chief justice's desire to keep the institution out of the limelight only prolonged a battle over a hot-button issue for the right.
"The fact that Justice Thomas went from being a member of the dissent in Casey to a member of the majority in Dobbs 30 years later shows the extent of his influence on the court and the success of the conservative legal movement," said Carrie Severino, president of the Judicial Crisis Network, referencing a 1992 abortion case that revisited and upheld Roe. "It's remarkable that in a span of just 24 hours, Justice Thomas and Justice Alito wrote the majority opinions in two of the most significant cases in the last decade."
On the left, the decision was slammed as partisan – a response to a decades-long pressure campaign by conservatives and a coordinated effort to promote right-leaning lawyers early in their career who might one day secure one of the court's nine seats. As expected, the ruling prompted protests across the country, recriminations from Democrats on Capitol Hill and a somber address from President Joe Biden.
"This disturbing milestone speaks to how hyper-partisan and lawless the Trump Court has become," said Rakim H.D. Brooks, president of the liberal Alliance for Justice. "Republican senators colluded with President Trump to illegitimately pack the court with far-right ideologues and this is the devastating result."
A day before the abortion decision, a 6-3 majority struck down a New York law that required state residents to have "proper cause" to carry a handgun, a decision that could make it far easier for millions of Americans to arm themselves in public. Thomas wrote the opinion holding that the state law violated the Constitution.
Roberts signed onto the court's opinion in that case, though he also joined a concurring opinion written by Kavanaugh that some saw as limiting its potential impact.
At least two coming cases may offer a clue about whether the abortion and guns decisions represent a change in course. One, likely to land next week, deals with climate change and whether the federal government has the authority to regulate power plant emissions. Assuming the court rules against the Environmental Protection Agency, it could do so on narrow grounds or with a much broader approach.
The second option would be a boon for conservatives, who have argued the Supreme Court should limit the power federal agencies to craft regulations absent explicit authorization from Congress. That debate was in play this year when the court struck down Biden's COVID-19 vaccine requirements for large businesses.
The other major case on the horizon is a dispute over whether Harvard University and the University of North Carolina violate civil rights law and the Constitution with the admission policies they use to ensure a diverse campus. Harvard acknowledges considering race in admissions, but says it does so as one of several factors – an approach that is consistent with the current legal standard allowing some affirmative action policies by universities.
That decision will not likely land until next year.
Ira Lupu, a professor at George Washington University Law School, said the outcome of the climate case is hard to predict based on the oral arguments, but he doesn't think Roberts will be as isolated as he was in the abortion decision. In the abortion case, Lupu said, Roberts seemed to "finish where he started," pitching an incremental outcome at oral argument that he wound up summarizing in his concurrence on Friday.
What was striking was that in both instances, Roberts was alone.
"He wanted to go a step at a time," Lupu said. "He's got a political sensibility and he knew that overturning Roe v. Wade entirely was going to create what it's now creating."
Accomplishing that goal, though, requires finding a majority of the nine justices.
"It's really important, if you try to change things," Lupu said, "that you have five votes."