Chief Justice John Roberts has previously enraged his fellow conservatives.
Some of the many actions that have earned him a reputation as an unreliable ally to the conservative legal movement include voting to uphold Obamacare, protect LGBTQ employees from discrimination, strike down a Louisiana abortion restriction, and safeguarding the Deferred Action for Childhood Arrivals policy for children unauthorized to live in the US.
Anti-abortion activists are now counting down the days until the Supreme Court’s 6-3 majority hands them the huge triumph they’ve been striving for decades: overturning Roe v. Wade.
However, Roberts could derail their intentions.
Many, who watch the court closely now believe that the chief justice, who has always sought to protect the Supreme Court from political attacks, is opposed to a total overturning of Roe v. Wade, the landmark decision that legalized abortion in all 50 states more than 50 years ago.
According to a leaked draft ruling, his attitude puts him at odds with his five conservative colleagues on the bench, who are poised to reverse the precedent.
“Justice Roberts is an institutionalist, and he’s unlikely to want to overturn Roe v. Wade all at once,” I. Glenn Cohen, a professor at Harvard Law School, told Insider, adding that the chief justice was probably in favor of “rolling it back slowly.”
The crux of the important case before the court is a Mississippi legislation that tries to prohibit abortion after 15 weeks of pregnancy, contrary to the Roe standard, which allows abortion until viability, which is around 24 weeks. Mississippi has requested the United States Supreme Court to overturn Roe v. Wade and a subsequent 1992 decision, Planned Parenthood v. Casey, which held that states may not place an “undue burden” on abortion.
Multiple news agencies noted after the leak that Roberts seemed to be carving out a narrow path, one that may allow Mississippi’s law to remain while preserving Roe’s essential concept that women have the constitutional right to an abortion. Roberts’ thoughts were revealed to The Washington Post and CNN by people familiar with the court’s deliberations.
“The potential bombshell on the other side is that, if it’s true, Roberts is pushing to try to get a compromise on 15 weeks,” Mark Kende, a professor at Drake University Law School stated.
Roberts’ success would depend on his ability to persuade at least one other justice to join him, removing the five votes required for a majority and making his opinion the definitive ruling of the court.
Sources told Politico in a report published Wednesday that none of the five conservative justices appear to have changed their thoughts on the issue. Their votes may change in the coming weeks as the court prepares to rule on the Dobbs v. Jackson Women’s Health Organization case, which is expected to be determined by late June or early July.
Chief Justice John Roberts is now investigating the leaked draft Supreme Court opinion. But @AymanM asks if we should be investigating whether five justices lied during their confirmation hearings about their views on Roe v. Wade. WATCH: pic.twitter.com/Dk0kZF2w3f
— AYMAN (@AymanMSNBC) May 9, 2022
“He only has the power of persuasion. He doesn’t have any authority over any other justice that would make that justice reach a decision that the justice doesn’t want to reach. He only has the power of persuasion,” Keith Werhan, a professor at Tulane Law School, said.
During oral arguments for the case heard on December 1, there were signs that Roberts would split from the court’s conservative wing. Through his line of questioning, the chief justice distinguished himself. He frequently presented a skewed perspective on the case, focusing on Mississippi’s 15-week statute rather than the state’s requests to overturn Roe.
“What we have before us though is a 15-week standard,” Roberts said during oral arguments.
Either John Roberts is in the majority on the MS abortion case and passed over Clarence Thomas to assign the opinion to Alito, or Thomas is the senior Justice in the majority and chose not to assign the opinion to himself.
Either way, there’s a story here media must investigate. pic.twitter.com/JY8a4r7EXX
— Seth Abramson (@SethAbramson) May 4, 2022
“The thing that is at issue before us today is 15 weeks,” he said again later.
At one point, Roberts shifted the conversation away from comprehensive abortion prohibitions and questioned changing Roe’s viability criterion.
“I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability,” he said.
The remainder of the conservatives were preoccupied with something else. The “interests” of fetal life were mentioned by Justices Samuel Alito and Brett Kavanaugh. Adoption was mentioned by Justice Amy Coney Barrett. Casey’s “undue burden” criteria were questioned by Justice Neil Gorsuch. Justice Clarence Thomas questioned how the Constitution safeguarded abortion rights.
I think the leaker is Chief Justice John Roberts. I’ve never trusted him. Mark my words.
— Hayes Media (@tomhayesmedia) May 12, 2022
Then there was the leaked draft opinion — a vehement rejection of Roe drafted by Alito – which revealed even more evidence that Roberts was alone in his thinking.
Following oral arguments, the justices convened in a closed session to vote on the case. Politico reports that Alito, Thomas, Gorsuch, Kavanaugh, and Barrett voted in the majority to support Mississippi and overturn Roe. Roberts’ vote was ambiguous.
If the chief justice votes in the majority, the opinion is assigned to him. If he doesn’t, the most senior member of the majority, who in this case would be Thomas, is assigned the assignment. Thomas, the court’s longest-serving member, has long been a vociferous critic of Roe. Why he didn’t write the opinion himself is unclear.
Everyone talks about Kevin McCarthy loosing control of his congressional members. But, what about John Roberts SCOTUS? The justices are running amok and breaking all kinds of norms. Hold your justices accountable Justice John Roberts.
— Dee – NO DM! (@dshanico) May 11, 2022
“The fact that Justice Alito got the opinion suggests that the chief justice was not the one assigning it because he knows that Alito is like a bottle of rage, and he wouldn’t have selected him for this particular opinion,” Sherry Colb, a professor at Cornell Law School stated.
Roberts, who had been shaken by the disclosure, appeared to indicate that he had not abandoned his position.