(C) Common Dreams
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The Chief Justice Who Isn’t [1]

['Matt Ford', 'Jacob Silverman', 'Ed Burmila', 'Walter Shapiro', 'Michael Tomasky', 'The New Republic']

Date: 2022-10-20

Dobbs may represent the nadir—so far—of Roberts’s influence over his colleagues to steer a middle-of-the-road outcome. He argued for the court to decide the case on narrower grounds, upholding the Mississippi law but leaving the court’s abortion precedents largely intact. “I would take a more measured course,” Roberts declared. “I agree with the Court that the viability line established by Roe and Casey [which upheld Roe] should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability.”

His fellow conservatives rejected both his outcome and his approach outright. “In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” Alito wrote for the court. “The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.” We are going to overturn Roe one way or another, Alito and his colleagues may well have thought, so why not do it today? The three dissenting liberal justices did not join Roberts, either; they chose instead to release a joint opinion that lamented the majority opinion while ignoring Roberts’s concurrence.

There are some indications that the outcome in Dobbs may not have been completely preordained. CNN’s Joan Biskupic, a veteran Supreme Court reporter, wrote in July that Roberts had tried to persuade some of his fellow conservatives, most notably Kavanaugh, to adopt the more incremental approach laid out in what became the chief justice’s concurring opinion. Those efforts were apparently serious enough that other conservatives on the court started talking: An April editorial in The Wall Street Journal warned that Roberts was lobbying the others behind the scenes. Then someone—a clerk, a court employee, or maybe even one of the justices—leaked a draft of Alito’s majority opinion to Politico. Roberts publicly denounced the leak the following day and opened an investigation into the unprecedented breach. According to Biskupic, the leak also firmly shut the door on any possible compromise from the chief justice.

Perhaps the most ominous aspect of the ruling was a concurring opinion written by Thomas. In it, he took aim at a broader assortment of constitutional rights beyond abortion. Under a doctrine known as substantive due process, the Supreme Court has previously ruled that certain constitutional rights exist even if they are not explicitly protected by the Constitution’s text or structure. This approach was part of the basis for the court’s abortion rights jurisprudence. It also influenced rulings that protect contraceptive access, sexual intimacy, marriage equality, and more.

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[1] Url: https://newrepublic.com/article/168051/john-roberts-lost-control-supreme-court

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