Chief Justice Roberts doesn't seem ready to overturn Roe, but Texas ruling suggests 5 other conservatives may be

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John Roberts
John Roberts Erin Schaff-Pool/Getty Images

The Supreme Court's 5-4 decision not to block a new Texas six-week abortion ban is "a strong but not final indication that the court will soon overturn Roe v. Wade," Politico predicts. The three liberal justices and Chief Justice John Roberts each wrote separate, sometimes blistering dissents.

"Roberts doesn't write this dissent if he's ready to overrule Roe v. Wade," University of Texas law professor Steve Vladeck writes. "The fundamental issue — and the question that's going to loom over [the Supreme Court's] entire upcoming term — is whether, when the time comes, any of the other five conservatives are going to join him."

"Abortion rights supporters think they have little chance of persuading Justices Clarence Thomas, Samuel Alito, or Neil Gorsuch to act against the legislation," Politico's Josh Gerstein reports, but "they still hope that either Justice Brett Kavanaugh or Justice Amy Coney Barrett might side with the law's opponents if the issue gets before them in a different legal vehicle."

That's unlikely, UC Irvine School of Law professor Rick Hasen said in a long Twitter thread. The five-justice majority "has said that even if this law is likely unconstitutional, the Rube Goldberg-esque enforcement mechanism that Texas designed for its anti-abortion law has tied the court's hands," which is "poppycock," he argues. "The majority doesn't say it but the real issue is that they believe plaintiffs don't have the right to abortions. But the majority is not going to say that in this case, so they hide behind the technical arguments which are hard to explain to the public."

"The upshot of the court's decision is to allow Texas to use a jurisdictional trick to ban abortion after six weeks, at least for a time, without the court having to say 'Roe v. Wade is overruled,'" Hasan writes. "The opinion provides a fig leaf pretending it is not a judgment on the merits. But the handwriting is on the wall. If the court took the merits of the undue burden standard or respect for precedent seriously, this case was a no-brainer to stay Texas' law. No, Roe v. Wade was not overruled tonight. But the ease with which Texas purported to bulldoze the court's abortion jurisprudence tells you all you need to know about the right to choose before this court. And the conservative majority can leave the chief justice behind."

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