Are conservatives about to be stabbed in the back by Chief Justice John Roberts again? The danger certainly seems plausible.
A recent editorial in The Wall Street Journal reminds us that the court is about to rule on a Mississippi abortion case called Dobbs v. Jackson. It has the potential to overturn Roe v. Wade, with the oral argument suggesting that five justices are leaning in that direction.
The only catch? As The Journal notes, “a ferocious lobbying campaign is trying to change their minds” and during oral arguments, Justice Roberts seemed to be trying to “find a middle way.” More concerning, The Journal speculates that Roberts “may be trying to turn another Justice now.”
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Back in 2012, Chief Justice Roberts was persuaded to switch his position on The Affordable Care Act, aka Obamacare. To rationalize his decision to uphold the law, Roberts employed a bit of judicial gymnastics. A decade later, the prospect of the Court upholding Mississippi’s 15-week abortion ban—while stopping short of overturning Roe (ostensibly, the “middle way” Roberts would negotiate)—would require a similar degree of inventiveness.
By changing his mind and preserving Obamacare, Roberts was praised for saving the Court’s reputation and preserving the respect for the institution. This should not be the primary motive for rendering a decision, but it is a moment in history that could be repeated when the Dobbs decision is handed down later this spring or early summer. Over at the Volokh Conspiracy, constitutional law professor Josh Blackman suggests that The Journal’s warning may be based on intel or leaks from sources close to the Court.
Crucially, there are more Republican-nominated justices now than there were at the time of the Obamacare decision in 20120. As such, this maneuver would require Roberts to flip one of the conservative justices—probably either Justice Amy Coney Barrett or Justice Brett Kavanaugh. Either option seems unlikely, but as The Atlantic’s McKay Coppins has written, unlike Justices Clarence Thomas and Samuel Alito, Kavanaugh “desperately wants to gain readmission into polite society.” HotAir’s John Sexton echoes this concern, writing: “Kavanaugh’s confirmation hearings were pretty traumatic. If he were to become the last vote to preserve Roe and Casey it would be a pretty dramatic way for him to say to all of his left-wing critics ‘You were wrong about me.’”
If you’re a conservative who views abortion as the taking of an innocent life, your reasons for concern over this possible scenario are obvious. But my contention is that everyone should be skeptical of the assumption that preserving Roe would strengthen the institution.
“The institutional legitimacy of the Court is at its apex when it acts as a court, interpreting the Constitution in light of its text, history, and tradition, regardless of the political consequences,” said Carter Snead, a professor of law at the University of Notre Dame (who made the same point in an amicus brief calling for the court to overturn Roe), in a text message to me on Thursday. “Its legitimacy is most at risk when it acts politically—pursuing results-oriented outcomes based on its assessment of the political winds.”
Snead makes a valid point. Even some prominent liberals who supported Roe conceded that it was a flawed ruling. Ruth Bader Ginsburg famously agreed with conservative legal critics that the precedent was reasoned badly.
But if the goal is protecting institutions, there’s another factor worth considering: Roberts shouldn't assume that the biggest threat to the court’s legitimacy comes from the left. Pulling the rug out from under conservatives (yet again) could result in some serious unintended consequences.
Upholding Roe—to preserve the court’s reputation—would constitute yet one more disappointment in which ostensibly conservative justices have twisted the text to uphold landmark legislation that benefits the left.
This action wouldn’t just demoralize people who have dedicated the last fifty years of their lives to this abolitionist cause, it would reinforce the growing notion that playing by the rules of democracy (winning elections, etc.) to bring about the “common good” is a waste of time. In other words, it would reinforce the yammerings of the illiberal right.
To be sure, the right is to blame for its own radicalization. But citing explanations does not equate to making excuses. Many on the right have abandoned democracy because of a growing sense that the left controls the commanding heights of entertainment, academia, and most cultural institutions. All that remains is politics, and—in the estimation of a growing number of Americans on the right—working through the proper channels of electoral democracy hasn’t reversed the cultural drift.
In the decades-long slog to overturn Roe, the conservative legal establishment identified, promoted, and nominated highly qualified judges with the right pedigree, academic credentials, and temperament. The bet was that their judicial philosophy would predispose them (but not predestine them) to conservative outcomes.
If this strategy fails (and at this point, anything short of overturning Roe might be interpreted that way), the next strategy will probably be based solely on guaranteeing outcomes instead of intellect.
Be careful what you wish for. If you thought the right-wing populist backlash has sullied Congress, just wait until the Supreme Court has its own Matt Gaetz, Marjorie Taylor Greene, and Lauren Boebert.
