While this Supreme Court term is not yet over, it is amply clear that the time has come for a major reassessment of Chief Justice John Roberts, who has now voted with the liberal bloc of the court in enough cases to warrant the epithet “liberal” from those who work to pack the courts with conservatives in exchange for money. And while Roberts is assuredly not a “liberal,” nor even a moderate centrist, he is certainly something, and that something is not quite what it was even a year ago when he was already transforming as the court’s right wing swung ever further away from America’s rational center. Still, John Roberts is not a “swing justice” in the manner of a Sandra Day O’Connor or an Anthony Kennedy. Roberts has strategy, while Kennedy had feelings. Roberts is a capable tactician who understands history, public opinion, and how much pressure any one institution can withstand without breaking. He may also be one of the only sitting justices who understands how the modern news cycle works, and he has managed to surf that cycle flawlessly, this term as in prior years. If he has a superpower, it is that he knows how to do consequential things in small ways, at a moment in which everyone else is swinging for the fences.
The headlines on Monday were full of breathless accolades for John Roberts, the institutionalist, whose narrow concurrence in June Medical v. Russo preserved the core holdings of Roe v. Wade and Planned Parenthood v. Casey, and also the cardinal principle that nobody but the Supreme Court gets to overrule precedent—not the Louisiana legislature and not the federal appellate courts. The most important sentence in the chief justice’s concurrence Monday morning must be, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health v. Hellerstedt was right or wrong, but whether to adhere to it in deciding the present case.” That is not a full-throated defense of a woman’s reproductive freedom but rather a full-throated defense of the court as sole arbiter of a woman’s reproductive freedom. It’s at least worth remarking here that there were six separate opinions Monday, one from every male member of the court. Not one female justice wrote a word (very, very “under his eye”).
That is not a full-throated defense of a woman’s reproductive freedom but rather a full-throated defense of the court as sole arbiter of a woman’s reproductive freedom.
Roberts’ concurrence is classic Roberts—cloak a major blow to the left in what appears to be a small victory for it. Four years ago in Whole Woman’s Health, the court struck down the Texas admitting privileges law by assessing that such a law would constitute an “undue burden” on a woman’s right to terminate a pregnancy—a standard that in Justice Stephen Breyer’s formulation called for a careful balancing of the stated benefits of an abortion restriction against its burdens. Reading Roberts’ concurrence carefully, one sees that in June Medical, he managed to claw back that standard, replacing it with a much more deferential one that asks only whether the proposed regulation is unduly burdensome without requiring any consideration of the benefit. Not only that, he goes further and does essentially what he did in last year’s census case and last week’s challenge to the DACA rescission: He hints that essentially any old pretextual defense of an abortion law will serve; he just doesn’t like when lazy litigants offer up sloppy pretexts.
The problem for Roberts in June Medical is that the state of Louisiana offered up demonstrably bad reasons for insisting on admitting privileges for abortion providers at local hospitals, and then the 5th U.S. Circuit Court of Appeals offered up sloppy reasons for disturbing the findings of the trial court showing that two out of three clinics would close and women would be burdened. As was the case in the census litigation, and the DACA litigation, the outcome here is correct, but one can easily reverse-engineer the chief justice’s opinion to say, “Come back to me with the right road map and I’m all yours,” and in fact, he actually grabs your pencil, flips over the napkin, and sketches the map out at no extra cost.
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As Mark Joseph Stern and I wrote this time last year, “Lie better next time” could easily be the holding of June Medical, and states seeking to restrict abortion rights can now do precisely that, without running afoul of this ruling, so long as they ground the laws in better pretextual arguments about maternal health and fetal life and women’s need to make better choices. Roberts has turned a substantive constitutional right into a paper-thin debate about regulatory justifications. His scrupulous review of the many abortion restrictions that were permitted in Casey is a useful reminder that nothing is truly an “undue burden” if it comes dressed in the right language of solicitude and benign concern for mothers’ healthy choices. After today, 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.
I note here that Roberts is unique among the justices for his ability to capture the news cycle because the nation was already dangerously and myopically focused on June Medical as the sole determinant of whether Roe would survive the term. And the court certainly could have used this case as the vehicle to end legal abortion in America—it’s fairly clear there are four votes to do precisely that in the years to come. But in narrowing the focus to a yes/no ruling in June Medical, so many of us in the media and so many consumers of news fell into a trap that Roberts has deftly maneuvered multiple times. For those watching at home, it’s critical to realize, as the chief justice certainly does, that the issue today wasn’t just whether Roe survived, or even whether Whole Woman’s Health was pruned back to the stricter test in Casey. The issue is whether a host of religious exemption cases (including the Little Sisters case, which is still pending) and a host of state laws not identical in nature to those overturned in Texas will effectively end abortion. On those questions, there was no big win Monday. One hears constant talk about the death of Roe by a thousand little cuts, but it’s hard to measure what any one of those cuts look like in the daily blender of news coverage. Roberts is, and has always been, a master of doing small things that look like big things, and of making big things look trivial. Whatever else the media does well, identifying those small moments, in the moment, is not always our strong suit.
To be sure, nobody is more grateful than I am that the chief justice has opted, yet again, this week, not to tether himself to a conservative legal project that seeks to return women’s rights to the Paleozoic era (thanks, Clarence Thomas! And thanks, Susan Collins, for Brett Kavanaugh!). And that Roberts has hived off from the radical project that would end all legal abortion in this country for women of color, poor women, women in red states, and women lacking in basic health care is surely something to be lauded. But the drumbeat that fêtes Roberts as a “liberal” or a “moderate” or “evolving” fails to capture what he is. And he is a lifelong conservative, an avowed abortion opponent, and a supporter of capacious religious liberties that will swallow crucial civil liberties who also still cares—mercifully—about appearances, institutions, truth, stability, the appearance of adulthood and competence, and above all, the long game. This decision was a small one, in response to an audacious law that should have been struck down without a hearing. At some point, conservative legal activists, and Justice Department lawyers doing Bill Barr’s crazed bidding, will stop passing audacious new rules that appear to have been written in green crayon on the walls of a playpen. At some point, they will lawyer carefully and effectively again, as John Roberts has been doing since he was a very careful young lawyer himself. When that happens, they will have five votes at the high court, and John Roberts will have shown them how to do the big one.
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