WATERLOO – In the weeks preceding the Supreme Court’s historic decision to overturn Roe v. Wade, rumours started to circulate about Chief Justice John Roberts, who for years had both a literal and figurative seat at the heart of the nation’s top court.
The 67-year-old jurist, who was no longer the court’s median justice and had no real influence over his eight fellow justices, had previously shown a talent for garnering small majorities for specific decisions that neither liberals nor conservatives found particularly satisfying after the court’s terms ended.
Maybe Roberts would figure out a way to salvage Roe, experts predicted.
However, this week’s decision to take away the fundamental right to an abortion destroyed such hopes.
The decision, which was praised by the right and denounced on the left, raised important questions about whether Roberts’ go-slow strategy is still in effect and whether the Supreme Court, under his leadership, is becoming embroiled in the partisan controversy he has spent the last 17 years trying to keep out of it.
Glenn Cohen, a professor and vice dean at Harvard Law School, claimed that “he’s had this kind of tidal wave against him.” “More than anything else, those who know him well describe him as an institutionalist.
And based on the stature of the court and its function within the political system, I believe this is exactly what he does not want to happen.”
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Roberts, who was appointed by President George W. Bush in 2005, recently gave the deciding vote in the court’s most recent significant abortion controversy, a 5-4 decision that invalidated a Louisiana statute restricting the procedure.
Eight years earlier, Roberts was bitterly credited on the left for saving President Barack Obama’s national health care reform by siding with the court’s liberals, while receiving harsh criticism from the right.
The court’s makeup has altered significantly since those times, giving conservatives a 6-3 advantage for the first time in decades thanks to President Donald Trump’s nominations of Associate Justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett.
Roberts’ status as a swing vote abruptly changed, and his conservative colleagues no longer required him to help the court and the law shift to the right.
The top justice dissented from the majority’s decision to overturn Roe on Friday. Instead, he stated what some perceived to be the centrist stance:
He wanted to uphold the in question Mississippi law prohibiting the majority of abortions after 15 weeks of pregnancy but did not want to overturn one of the Supreme Court’s most well-known rulings.
No other justice concurred with him.
After a draught of the opinion in the case surfaced last month, several people wondered if Roberts was secretly trying to persuade Kavanaugh or Barrett to concur with him by arguing that precedent should be respected even if they disagreed with it.
During the oral arguments in December, he had expressed support for that very notion.
If that lobbying attempt did occur, it was a colossal failure.
On October 1, 2021, Chief Justice John Roberts and Associate Justice Amy Coney Barrett of the Supreme Court met there. Getty Images, Chip Somodevilla
As the chief, Cohen found it intriguing to write by myself. One has the impression that this is his judicial minimalism moment of shouting into the desert.
The abortion ruling seemed to be the most recent sign that the court’s conservatives, led by Associate Justice Clarence Thomas, are starting to show some sway. The choices could signify a departure from Roberts’ incrementalism and a far speedier swing to the right.
Good, say several conservatives who viewed Roberts’ strategy as a flimsy effort to steer clear of controversy. According to those who support it, the 1973 Roe decision alone is what introduced politics to the Supreme Court.
Additionally, the chief justice’s desire to keep the institution out of the public eye merely dragged out the conflict over a right-wing hot potato.
“The extent of Justice Thomas’ influence on the court and the success of the conservative legal movement is shown by the fact that he went from being a member of the dissent in Casey to a member of the majority in Dobbs 30 years later,” said Carrie Severino, president of the Judicial Crisis Network, referring to a 1992 abortion case that revisited and upheld Roe.
Amazingly, Justice Thomas and Justice Alito produced the majority opinions in two of the most important decisions of the past ten years in the space of just 24 hours.
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The decision was criticised on the left as being politicised because it was made in reaction to a decades-long pressure campaign by conservatives and a concerted attempt to advance right-leaning attorneys early in their careers in the hopes that they may one day win one of the court’s nine seats.
As was to be expected, the decision sparked demonstrations around the nation, criticism from Democrats on Capitol Hill, and a solemn speech from President Joe Biden.
Rakim H.D. Brooks, president of the liberal Alliance for Justice, said: “This disturbing milestone shows to how hyper-partisan and unlawful the Trump Court has become.” The catastrophic outcome was caused by Republican senators working with President Trump to illegally appoint far-right extremists to the court.
On January 20, 2017, Chief Justice John Roberts shows up for the inauguration of the president at the Capitol. Pool and Saul Loeb
A New York statute that required people to have “proper cause” to carry a pistol was overturned by a 6-3 majority the day before the abortion decision, which may make it much simpler for millions of Americans to carry weapons in public. According to Thomas’ decision, the state law was unconstitutional.
Although he also joined a concurring opinion written by Kavanaugh that some felt limited the court’s potential influence, Roberts signed the court’s opinion in that case.
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At least two impending cases could provide insight into whether the decisions regarding abortion and firearms indicate a change in strategy. One, which is most likely to debut next week, examines climate change and the federal government’s ability to control emissions from power plants.
If the court rejects the Environmental Protection Agency’s appeal, it may do so on specific grounds or based on much broader criteria.
The second choice would benefit conservatives, who have argued that the Supreme Court should restrict the ability of government agencies to create regulations without express congressional permission.
When the court overturned Biden’s COVID-19 vaccination mandates for major enterprises this year, that argument was in play.
On January 16, 2020, Chief Justice John Roberts of the US Supreme Court arrives at the US Capitol in Washington. USA TODAY’s Jack Gruber
The other significant issue that will soon be heard concerns whether admissions practices used by Harvard University and the University of North Carolina to promote diversity on campus violate civil rights laws and the Constitution.
Harvard admits that it takes race into account when making admissions decisions, but claims that this is just one of many considerations. This strategy is in line with the current legal standard that permits some affirmative action policies by universities.
Probably not until the following year will that choice be made.
Professor Ira Lupu of the George Washington University Law School said that while it is difficult to anticipate the outcome of the climate case based on the oral arguments, he does not believe that Roberts would be as alone as he was in the abortion decision.
Lupu claimed that Roberts appeared to “end where he started” in the abortion case, proposing an incremental resolution during an oral argument that he later summarised in his concurring opinion on Friday.
What was notable was that Roberts was alone in both situations.
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Lupu remarked, “He wanted to take things to step by step. He has political sensitivity, and he understood that completely repealing Roe v. Wade would lead to the current situation.
Finding a majority of the nine justices is necessary to reach that objective, though.
Lupu stated that having five votes is crucial if you want to make changes.
