Legal experts argue that Chief Justice John Roberts, another Supreme Court conservative, in Roe v. He says he can persuade Wade to stop knocking.

John Roberts

Chief Justice John Roberts.Leah Millis-Pool/Getty Images

  • Court observers, Chief Justice John Roberts’s Roe v. Wade believes he is opposed to completely overturning his case.

  • Roberts might persuade another conservative justice to agree with her narrow stance on abortion rights.

  • If it did, that position would be the Supreme Court’s final decision.

Chief Justice John Roberts has infuriated conservatives before.

Voted to support Obamacare, protect LGBTQ workers from discrimination, lift the abortion restriction in Louisiana, and maintain the Deferred Childhood Arrivals policy for children who are not authorized to live in the United States; these are some of the many actions that have earned him a reputation. an unreliable ally of the conservative legal movement.

Now, anti-abortion advocates expect the Supreme Court’s 6-3 majority to win them a monumental victory for which they’ve worked so hard for decades: Roe v. To topple Wade.

Roberts, however, may throw a wrench in his plans.

Court observers believe the chief justice, who has long sought to shield the Supreme Court from perceptions of partisanship, opposes the complete reversal of Roe, the landmark ruling that legalized abortion nationwide nearly 50 years ago.

His position is at odds with his five conservative buddies on the bench, who seem poised to shelve precedent, according to an original leaked draft view.

“Justice Roberts is an institutionalist, and it’s unlikely he’d want to overturn everything between Roe and Wade,” I. Glenn Cohen, a professor at Harvard Law School, told Insider, adding that the chief justice was probably in favor of “rolling over.” slowly comes back.”

At the center of the concluding case before the Court was a Mississippi law that sought to outlaw abortion after 15 weeks of pregnancy; this contradicts the standard that allows the procedure in Roe up to applicability for approximately 24 weeks. Mississippi asked the nation’s highest court to leave decision-making on abortion to the states and overturn Roe, and a later 1992 decision, Planned Parenthood v. Casey determined that states cannot place an “unnecessary burden” on abortion.

Roberts appears to be charting a narrow path, perhaps one that allows Mississippi law to apply but retains Roe’s core principle that women have the constitutional right to abortion, many news sources reported after the leak. People familiar with the court’s deliberations disclosed Roberts’ thoughts to The Washington Post and CNN.

“The potential bombshell on the other side, if true, is Roberts has been trying for 15 weeks to reach a compromise,” Mark Kende, a professor at Drake University’s School of Law, told Insider.

Roberts’ success would depend on his ability to win at least one other justice, a move that would eliminate the five required votes for the majority and make his opinion the final judgment of the court.

That’s a long shot, as none of the five conservative judges appear to have changed their minds, sources told Politico in a report released Wednesday. While their vote is likely to change, there are still several weeks between when the court is expected to make its decision on the case by late June or early July.

Keith Werhan says, “He only has the power to persuade. He has no power over any other justice to make justice come to a decision that justice does not want to reach. He only has power of persuasion.” “A professor at Tulane Law School,” he said.

John Roberts

John Roberts.Drew Angerer/Getty Images

Roberts appears to have split from conservatives on the bench

Signs that Roberts might leave the conservative wing of the court came during the oral debate over the case, which was heard on Dec. He repeatedly offered a narrow view of the case, focusing on Mississippi’s 15-week law, rather than the state’s demands to topple Roe.

“What’s next is a 15-week standard,” Roberts said during oral discussions.

He then said again, “What we have before us today is 15 weeks.”

At another point, Roberts walked away from a discussion about total abortion bans and asked about changing Roe’s viability limit.

“I want to focus on the 15-week ban because it’s not a dramatic departure from vitality,” he said.

The rest of the conservatives focused elsewhere. Judges Samuel Alito and Brett Kavanaugh expressed concern about the “interests” of fetal life. Justice Amy Coney Barrett speculated on adoption. Judge Neil Gorsuch expressed doubts about Casey’s “undue burden” testing. Judge Clarence Thomas questioned how abortion rights are protected under the Constitution.

Then came the leaked draft version, written by Alito, in which Roe was sharply dismissed, showing additional signs that Roberts was alone in his thinking.

After oral discussions, the judges met in a special conference to hold the initial vote on the case. According to Politico, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett voted in the majority to side with Mississippi and override Roe. Roberts’ vote was ambiguous.

The protocol of the Supreme Court is as follows: If the Chief Justice gives a majority vote, he gives his opinion. If not, the most senior member in the majority, who in this scenario would be Thomas, is assigned responsibility. The longest-serving member on the field, Thomas, was Roe’s vocal rival for a long time. It is unclear why he did not write the opinion himself.

“The fact that Judge Alito took this view shows that he knew Alito was like a bottle of anger, so he wasn’t the presiding judge and didn’t choose him for this particular view,” Sherry Colb said. A professor at Cornell Law School told Insider.

Shocked by the leak, Roberts signaled that he did not give up on his stance.

“This betrayal of the court’s confidentiality will not be successful to the extent that it aims to undermine the integrity of our operations. The work of the Court will not be affected in any way,” Politico said in a statement hours after publication. draft opinion.

The Supreme Court left the possibility open, stating in a press release that Alito’s draft opinion, which circulated among judges on Feb. That the way judges vote may change.

“Chief Justice Roberts tried to be a judge who upheld the institutional integrity of the court, and that must have been his worst nightmare,” Drake University Law School professor Kende told Insider.

“I think he’s going to get some leverage now,” said Kende. “Maybe there is a possibility of transition and the court is trying to say, ‘We’re not going to get out of this anymore. We’re going to compromise.'”

John Roberts, Amy Coney Barrett, Brett Kavanaugh, Stephen Breyer

Roberts, Justice Amy Coney Barrett and Justice Brett Kavanaugh at President Joe Biden’s State of the Union speech on March 1.Saul Loeb – Pool/Getty Images

The lasting influence of the chief justice

In his 16 years on the bench, Roberts has been an advocate of gradual rather than sweeping revisions of the law. Appointed by President George W. Bush, Roberts has a strong conservative track record, joining his bloc in many decisions. But he also has an independent streak and has sided with court liberals in some high-profile, contentious cases.

Roberts’ influence was perceived to wane as Barrett became a justice in 2020 and solidified an expanding conservative majority. He no longer voted in an ideologically divided court. But despite the court’s new structure, Roberts still maneuvered to get justice on his side in a few decisions.

Last year, Kavanaugh and Barrett joined Roberts in rejecting a Republican-backed challenge to the Affordable Care Act. The two newest members of the court also voted key with Roberts in another decision narrowly supporting religious groups; it’s a limited stance that has met with disappointment from the more conservative members of the court.

Because of their willingness to pursue chief justice and uphold judicial restraint, it is widely accepted that Kavanaugh and Barrett have targets to negotiate in this abortion rights case for Roberts.

“There is no reason to assume that Chief Justice Roberts did not try to persuade a member of the majority to at least go with him on this issue,” said Werhan, a Tulane Law School professor. said.

Still, some court watchers feel that any follow-up of Roberts would be doomed. President Donald Trump has promised to appoint Supreme Court justices who oppose Roe if he is specifically elected on the 2016 campaign trail. Their picks, Gorsuch, Kavanaugh and Barrett, came from conservative legal networks pushing anti-abortion agendas.

“I really don’t see any of these judges jumping ship and deciding to push Roe,” said Cornell Law School professor Colb. “They’ve been wanting to do this for a long time.”

If Roberts does manage to get one vote though, the result could be a fragmented 4-2-3 decision, with three of the court’s liberals in opposition. This outcome would have given Roberts the opportunity to write the court’s opinion.

“Ironically, he could have written an opinion that would have had the least commitment, but would still state the forward-looking position,” Werhan said. Said.

Despite the waning public confidence in the Supreme Court, Roberts has remained widely popular with Americans. In a December poll by Gallup, the majority of Americans – 60% – said they approve of the way they do their job. Only 40% of respondents said they supported the work of the supreme court; that’s a record drop since Gallup launched its audience 20 years ago.

Legal experts say it concerns Roberts that the public’s faith in the court has waned. And a ruling that topples Roe would likely deepen criticism of the legitimacy the court is trying to fend off.

“The irony is that Chief Justice Roberts used to be a true sort of champion when it came to dominating Roe,” Colb said. “And I think it’s gotten more moderate, in part because of how outrageous the excess of the court was and how the court gained public respect.”

If Roberts’ approach is adopted by the court, it is bound to anger conservatives who want Roe’s complete destruction. At the same time, changing Roe’s viability mark would upset liberals who have long fought to keep him intact.

“Casey has caused a significant disruption to access to abortion,” Werhan said. “Maintaining Mississippi law at Dobbs does the same.”

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