Can Roberts steer Supreme Court safely through abortion case crisis?

Focus

What can a chief justice bring to the U.S. Supreme Court that an associate justice cannot?

In September 2005, John Roberts, then a nominee for that position, answered that he would “try to bring about a greater degree of coherence and consensus in the opinions of the court.”

“We’re not benefited by having six different opinions in a case,” he added. “The court should be as united behind an opinion of the court as it possibly can.”

The theory goes that a more united court earns more respect and deference from the public. Crafting an opinion that nine individuals can all agree on is also likely to result in a judicial consistency that won’t shift with changing political tides, or hare off too far and fast in a particular direction.

That should be a concern for all the justices, Chief Justice Roberts said in 2005. But the chief “has a greater scope for authority to exercise in that area,” he added, “and perhaps over time can develop greater persuasive authority to make the point.”

Over time, this doesn’t seem to have proved the case for him. In his 17 years on the court, Chief Justice Roberts says he’s learned that “unanimous means 7 to 2.” 

He made the quip at a judicial conference earlier this month, The Washington Post reported, and it was a joke of the dark humor variety. Days earlier, a draft ruling overturning the right to abortion had leaked to the public – the kind of ruling Chief Justice Roberts has spent much of his career trying to avoid.

The Supreme Court has marched steadily rightward during his tenure. Voting rights have narrowed, gun rights have expanded, and campaign finance laws have loosened, to name just a few jurisprudential trends. Almost every year since he joined the court, the question has been how Chief Justice Roberts protects its integrity amid crisis “X” or “Y” – crises often tied to controversial cases and rulings. 

None has yet had long-term consequences for the court’s reputation, judging by polls at least. The court has, broadly speaking, kept moving under the speed limit and on the correct side of the road, thanks, in important moments, to the chief justice. Recent examples include the Supreme Court’s decision affirming Congress’ right to investigate the president and that a sitting president is not immune to criminal investigation.

Overturning the right to abortion would be another matter entirely, however. And it is the greatest test to date of Chief Justice Roberts’ consensus-building bona fides.

“If you’re the chief justice, you’re remembered for what happened while you were chief justice,” says Kimberly Mutcherson, co-dean of Rutgers Law School in New Jersey. “We’re in very uncharted territory.”

The importance of private deliberations

The court is central to one of the three branches of government, albeit one that is unelected and with lifetime appointments, and as such, it’s important for institutionalists like Chief Justice Roberts that the court’s rulings don’t appear political. The best way to achieve that is to have as many justices as possible agree on an outcome.

That is not always possible, especially in complex and high-profile cases, but the chief justice has built a track record – though not a flawless one – of the coherence and consensus he identified during his confirmation.

Two years ago, for example, in the midst of the Trump presidency, Chief Justice Roberts wrote the majority opinion in two cases concerning the president: one affirming Congress’ power to investigate the president, and one regarding criminal investigations of a sitting president. In both, six justices joined his opinions. A year earlier, he authored a unanimous, albeit fragmented, ruling that blocked the addition of a citizenship question to the 2020 census.

In all those cases, it’s critical that these private deliberations remained private, experts say.

Behind each Supreme Court ruling are months of cloistered deliberations between justices and their clerks and between the justices themselves. Draft opinions, like the one leaked, and concurrences are circulated between the justices. Arguments might be adjusted, language tweaked, and, occasionally, votes switched.

“Our independent judiciary ... has to be insulated from public scrutiny of the decision-making process in individual cases,” says Roman Martinez, a partner at Latham & Watkins and a former clerk to Chief Justice Roberts.

If it isn’t, he adds, it “inevitably frays the degree of candor [justices] have when sharing ideas in deliberating a case. It increases suspicions.”

Of all the issues the Supreme Court considers, in the modern era the right to abortion has been the most fraught. But in the wake of a succession of leaks concerning the current abortion case, Dobbs v. Jackson Women’s Health, it’s possible that the court’s deliberative process has been damaged.

The leaks include a full draft opinion published by Politico, revealing that there are at least five votes among the justices to overturn the half-century-old constitutional right to abortion. It also revealed that the chief justice was not in the majority.

In a statement confirming the authenticity of the leaked draft, Chief Justice Roberts added that it “does not represent a decision by the Court or the final position of any member on the issues in the case.” No new drafts have been circulated since the leaked Feb. 10 draft written by Justice Samuel Alito, Politico reported.

But that could be because the justices are being more secretive around Dobbs, experts say.

“I’m thinking that there are revisions going around, but they’re not going to everybody,” says David Garrow, a court historian.

Bonds of personal affection

Since Justice Amy Coney Barrett joined the court in October 2020, cementing a conservative supermajority, court watchers have looked for evidence of strained relationships. But from the outside at least, normal service has resumed since the draft opinion leaked.

On Monday the court issued two opinions: a unanimous ruling in a technical employment arbitration case, and a 6-3 ruling – along ideological lines – that eliminated an avenue of appeal for death penalty inmates on the grounds of inadequate representation. The latter ruling continued a Roberts Court trend of favoring the government over criminal defendants. That tendency was also evident last week when, in another 6-3 ruling along ideological lines, the court further loosened campaign finance regulations.

There have been spiky opinions and dissents this term, particularly from the three Democrat-appointed justices, and particularly concerning the court’s increasingly active use of its emergency, or shadow, docket. And some court watchers believe a distance may have grown between the justices in recent years that won’t aid Chief Justice Roberts’ consensus-building efforts.

“The ordinary everyday interactions through which the justices build trust and knit together an institution have not been happening,” says Aziz Huq, a professor at the University of Chicago Law School and a former clerk to Justice Ruth Bader Ginsburg. The court has been closed to the public since the pandemic began, for example, and the justices spent all of last term hearing oral arguments remotely.

When he clerked on the court in 2003-04, “the two most important friendships on the court” were between ideologically opposed justices, he notes: Justices Ginsburg and Antonin Scalia, and Justices Clarence Thomas and John Paul Stevens, respectively.

“I just don’t know if there are anything like those friendships on the court today,” he adds.

For evidence to the contrary, Mr. Garrow points to the court’s last oral argument session of the term, when Chief Justice Roberts paid emotional tribute to the retiring Justice Stephen Breyer.

“I doubt ever in Supreme Court history has a chief justice come that close to crying on the bench,” he says.

“To me that was powerful, powerful evidence [of] the bonds of personal affection that grow amongst them, completely apart from if they agree or angrily disagree with each other in case X or Y,” he adds.

“The biggest event ... since Brown”

Since Chief Justice Roberts joined the court, disapproval of the court has mostly hovered between 30% and 45%, according to Gallup – with a public approval rating far higher than Congress’. But recently that has begun to change. Last September, around the time the court let a controversial Texas abortion law stand with a short, unsigned opinion, disapproval of the court ticked up to 53%, Gallup found. From August 2019 to January this year, the court’s favorability rating dropped by 14 points, according to Pew. More recently, a May tracking poll by Politico and Morning Consult found that just 14% of respondents had a lot of confidence in the Supreme Court, with 16% having no confidence in the institution.

Whether the leak has harmed deliberations between the justices, or even harmed how the public views the court, experts say that what really separates this moment from previous legitimacy crises the court has faced is the Dobbs opinion itself.

When the Supreme Court established the right to abortion in Roe v. Wade in 1973 in a 7-2 ruling, it immediately ranked among the court’s most historic opinions. If the final Dobbs opinion overturns Roe, it will be equally, if not more, significant.

“If Dobbs comes out more or less where the Alito first draft was, this is the biggest event in the court’s history since Brown,” says Mr. Garrow, referring to Brown v. Board of Education, the case in which the Supreme Court banned segregation in public schools.

Famously, thanks to the intense charm offensive of Chief Justice Earl Warren, the Brown ruling in 1954 was unanimous, with no separate concurrences or dissents. In that vein, Chief Justice Roberts has talked about the institutional strength the court builds when it speaks with one voice, acting as “a Court – not simply an assemblage of justices.”

When the justices meet to discuss cases at weekly conferences, he reportedly lets the meetings run longer so there can be more debate. As the great Supreme Court advocate of his time, according to his colleague Justice Elena Kagan, he can make persuasive arguments to his fellow justices.

He has led by example, regularly writing fewer separate opinions than his colleagues each term. He has also often sought to avoid sudden, significant change in many areas of the law, including abortion.

Indeed, he is a conservative jurist, but Chief Justice Roberts’ institutionalist leanings have made him one of the few justices to change their vote in abortion cases. In 2016 he dissented from a ruling that struck down a restrictive Texas abortion law, but four years later he voted to strike down a similar Louisiana regulation. “I ... continue to believe that [Texas] case was wrongly decided,” but because that decision is now precedent, he wrote, the Louisiana law “cannot stand.”

Like many high-profile decisions during his tenure, that Louisiana ruling was 5-4. Big cases involving the Affordable Care Act, campaign finance, same-sex marriage, partisan gerrymandering, and the Trump-era travel ban have all been decided by one vote – and often with the chief justice in the majority.

“To do anything momentous by 5-4 leaves you in a vulnerable position, institutionally, moving forward,” says Mr. Garrow.

Overturning half a century of precedent, and eliminating a constitutional right that women have retained for generations, qualifies as momentous.

If Justice Alito’s draft opinion in Dobbs becomes the final opinion, it would transform the country overnight and immediately rank among the court’s most significant decisions of the postwar era. Would Chief Justice Roberts be satisfied being in the minority for such a ruling? Would he have a choice?

“Whatever vision he has about the legacy he wants to leave on this court, I think it has really slipped through his fingers,” says Professor Mutcherson.

The reaction, she adds, “is not going to be just, ‘I think this is a terrible opinion’; it’s going to be, ‘This is a terrible court.’”

In the Dobbs oral argument, Chief Justice Roberts proposed a compromise solution in which a Mississippi law banning abortion after 15 weeks of pregnancy is upheld without overturning Roe. Neither party has argued that in the case, and as of February at least, the date of the leaked draft opinion, there wasn’t much support for such a ruling among the justices.

“Multiple judges and justices have made it clear they think [Roe] should be got rid of,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

“It’s harder to shift minds on this issue than others because of how strong feelings are,” he adds. “But he’s a better judicial statesman than I, so he might be able to find a way.”