John Roberts Distances Himself from the Trump-McConnell Legal Project
The Supreme Court often appears to exist in a world of abstractions. To pick just one example, what does a concept like “separation of powers” mean in the lives of most Americans? But three times in recent weeks, the Justices have issued concrete directives that have changed the world—and for the better. They held that it was unlawful to fire people simply because they are L.G.B.T.Q.; they prevented the Trump Administration from deporting seven hundred thousand young people, known as the Dreamers, who have lived virtually their entire lives as Americans; and they guaranteed that women in Louisiana will continue to have at least some access to abortion. And the Chief Justice, John G. Roberts, Jr., a conservative who was appointed to the Court fifteen years ago, by George W. Bush, voted in the majority in all three cases.
This, simply, is cause for celebration. But you wouldn’t know it from the reaction of many of those who follow the Court closely—and who agree with all three of Roberts’s votes. The headline on the Times’s editorial scolded, “John Roberts Is No Pro-Choice Hero,” and the piece intoned that Roberts “appears to have decided that the circumstances of this case were not ideal for crippling reproductive rights—but he left the door open to doing so in the future.” My friend Dahlia Lithwick, at Slate, wrote that what Roberts actually did was “cloak a major blow to the left in what appears to be a small victory for it.” Rather, she added, “Roberts is telling states wanting to impose all sort of needless regulations that it doesn’t matter if they are utterly without health benefits, so long as the burdens on women are not that bad.” The idea behind these views appears to be that Roberts’s vote to strike down these abortion restrictions was really just a move in a multi-dimensional chess game to allow other restrictions—and, ultimately, to overrule Roe v. Wade.
To which I reply, respectfully, nope. If the Chief Justice wanted to uphold restrictions on abortion, he would have voted . . . to uphold restrictions on abortion. He did the opposite, and struck down a law that would have curtailed access to abortion in Louisiana. It is true, of course, that Roberts has not suddenly turned into Ruth Bader Ginsburg. Four years ago, the Chief Justice voted to uphold abortion restrictions in Texas that were virtually identical to the ones that he voted to strike down in Louisiana. As he noted in his opinion concurring in the judgment this week, he stands by his 2016 vote, where he was on the losing side, 5–3. But, he added, “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
Like all the Justices, Roberts respects precedent—except when he doesn’t. He has often voted to overturn prior decisions with which he disagrees. In his opinion in the Louisiana case, Roberts said clearly that he believes that the Court’s decision in Planned Parenthood v. Casey, from 1992, which upheld Roe, remains the law of the land. The Casey ruling allowed some restrictions on abortion, but not others. That, clearly, will remain Roberts’s approach. But the idea that Roberts is dedicated to overturning Roe seems fanciful in light of this latest vote and opinion.
That cannot, of course, be said of Roberts’s four conservative colleagues, who voted to uphold the Louisiana law, despite its similarity to the Texas law that the Court just recently invalidated. Unlike Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh demonstrated by their votes that they are dedicated to the grand conservative project of overturning Roe. (In November, the voters of Maine will have a chance to invite their credulous pro-choice senator, Susan Collins, to reflect on her embrace of Kavanaugh, supposedly because of his great devotion to respecting precedent, from a comfortable retirement in the Pine Tree State.) As long as Donald Trump is President and Mitch McConnell is the Senate Majority Leader, any vacancy on the Court will be filled with a similarly anti-Roe Justice—right up to the day both men leave their posts. So the peril to Roe, and to abortion rights, remains. But it now seems clear that despite what I and others thought, this Court—that is, these nine Justices—will not be overturning Roe v. Wade. (Conservatives, to their chagrin, recognize this.)
As for Roberts’s other two votes, the one on employment discrimination against L.G.B.T.Q. people and the other about the Dreamers, it simply isn’t possible to explain them away as preordained by his prior jurisprudence. The employment case was about a statute, Title VII of the Civil Rights Act, not the Constitution. But Roberts had never before taken such an expansive view of the protections of the law, nor had he voted in favor of any of the Court’s landmark gay-rights rulings, including, of course, the 2015 decision guaranteeing the right to marriage in all fifty states. As for his vote on the Dreamers, Roberts has a strict view of the need for procedural regularity, and he voted to strike down the Trump Administration’s bumbling effort to place a citizenship question on the 2020 census for violating those principles. Roberts’s prior jurisprudence didn’t guarantee that result, either. I don’t pretend to know what’s in Roberts’s heart, but I can see what’s clear: that he is dissociating himself from key parts of the conservative legal project that Trump and McConnell have done so much to foster.
Roberts will never be a liberal, but he’s no moderate, either. His 2013 opinion in Shelby County v. Holder, which crippled the Voting Rights Act, will haunt his reputation, and the nation, forever. He will probably also vote to uphold some abortion restrictions in the future. This week, too, Roberts wrote a dismal opinion allowing public subsidies for religious schools, further lowering the barriers between church and state. But the John Roberts who currently presides at the Supreme Court is not exactly the same man he once was, and it may be time for his critics to recognize that and take yes for an answer.
