'What will Roberts do?' Anti-abortion laws put chief justice in the spotlight, and on the spot
The strict anti-abortion laws passed recently in Alabama, Georgia, Ohio, Mississippi, Kentucky, Iowa and North Dakota contain thousands of words. Tens of thousands more will be contained in court filings as these laws are appealed through the judicial system over the next year or more. And in their wake will come editorials, ad campaigns, speeches, fundraising letters from groups working for and against abortion rights.
And the implicit target of all those arguments and pleas is one man — the chief justice of the United States.
“What will John Roberts do?” has been the question among court watchers in recent years, one asked with increasing frequency in the months since former Justice Anthony Kennedy was replaced by Justice Brett Kavanaugh, effectively making 64-year-old Roberts the new swing vote on the court. With the spate of legislation that bans abortion almost entirely — permitting it only to save the life of the mother in Alabama, or before the sixth week of pregnancy in the others — the question has taken on new urgency. “What will John Roberts do, and when will he do it?”
Ever since Roe v. Wade established abortion as a constitutional right in 1973, those who disagree with the decision have been strategizing to overturn it. In what constitutional expert Linda Greenhouse has called “a long game,” opponents have waited for an amenable court, and the addition of Brett Kavanaugh creates the first true conservative majority in 50 years.
As an ideological minority, conservative justices have spent the decades effectively whittling away the broad protections of Roe by allowing states to add restrictions such as waiting periods, mandatory counseling and pre-procedure sonograms. As a majority, might they go one dramatic step further and nullify Roe?
The parade of bills headed their way — laws that are clearly and deliberately unconstitutional under Roe — are an attempt to pave the way for such a reversal. Justices Ginsburg, Kagan, Sotomayor and Breyer can be expected to uphold Roe, while Justices Thomas, Alito, Gorsuch and Kavanaugh have indicated in writings and public statements that they would be inclined to reverse it. Which is why the spotlight is on Roberts and the conflicting ideological threads of his legal career.
The only one who truly knows Roberts’s mind is the man himself, but court observers are watching closely, testing assumptions they have come to hold over the years, and wondering how those might play out in this new normal.
Roberts, a practicing Catholic whose wife, Jane, has been active in the anti-abortion group Feminists for Life, is widely assumed to be personally opposed to abortion. As what Newsweek called “a rock-ribbed Republican,” he served in both the Bush and Reagan administrations. As deputy solicitor general in 1990, he authored a brief saying the 7-2 Roe decision was “wrongly decided and should be overruled” and that a right to abortion “find(s) no support in the text, structure or history of the Constitution.”
At his confirmation hearing for chief justice, he noted that the roles of political employees and judicial appointees are different, and told a Senate panel that Roe was settled law and that “there’s nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the Court faithfully.”
In a memorable exchange with then-Pennsylvania Sen. Arlen Specter, who was a pro-choice Republican moderate back when such a thing was more possible, Roberts said, “It is a jolt to the legal system when you override a precedent” because “precedent plays an important role in promoting stability and evenhandedness. It is not enough that you may think the prior decision was wrongly decided.”
Specter went on to ask whether Roe was in fact a “super-duper precedent” because its core reasoning had been upheld in the 1992 opinion in Planned Parenthood v. Casey. In that case, Roe had seemed in danger of being overturned, but instead the court held that state regulations of abortion are unconstitutional if they pose an “undue burden” for patients.
Roberts refused to agree with Specter’s “super-duper” language, but did affirm his commitment to “stare decisis,” Latin for “to stand by things,” which is the legal term for respecting precedent. He added, however, that sometimes there is reason to overturn previous decisions, including when “precedent has been eroded by subsequent developments” in the law.
In his votes on abortion cases over the years, he has often sided with states seeking to restrict abortion rights. Notably, he voted with the majority to uphold the federal “partial birth abortion” ban in 2007, and to overturn a California law which regulated anti-abortion “crisis centers” last year. In between, he voted with the minority in Whole Woman’s Health v. Hellerstedt in 2016, in which the majority ruled that a Texas law setting stringent requirements for abortion providers — requiring that doctors who perform abortions have admitting privileges within 30 miles of their clinic and that abortion clinics meet the same standards as ambulatory surgical centers — posed an “undue burden.”
And yet, in keeping with his belief in “stare decisis,” he then voted with the majority last year in agreeing to put on hold a Louisiana law that was essentially a copy of the Texas law he voted to uphold in Hellerstedt. That vote, however, was simply to keep the law from going into effect while giving the justices more time to consider whether they would agree to hear it.
Perhaps Roberts’s most deeply held belief is that he — and the court as an institution — should not be seen as having an agenda. His conception of his role as chief justice includes taking responsibility for the reputation of the court, and he has periodically mused publicly that he is aware he is creating a legacy both for himself and the institution.
“He has spent a lot of time talking about court legitimacy,” said Sarah Benesh, a professor of political science at the University of Wisconsin. She cites his vote to uphold Obamacare several years ago as an attempt to keep the court from being seen as having a partisan agenda. “He demonstrated that there were concerns about the court as an institution that might sometimes trump his sincere policy wishes,” she said in an interview with Yahoo News.
New York University law professor Melissa Murray, who specializes in constitutional law and reproductive rights, agreed with Benesh: “I think Chief Justice Roberts is very different from who Associate Justice Roberts would have been. Were he not chief justice, he would be more like a Justice Alito. But he feels the responsibility of this role very deeply.”
Which does not mean Roberts has never voted to reverse standing precedent. But he has done so incrementally. Court observers have been finding a two-step process in those reversals, specifically in the areas of labor rights and voting rights. In both realms, the Supreme Court let a prior ruling stand, but also allowed states to enact laws that effectively gutted those prior rulings, what Yale law professor Reva Stein has called a “stealth overruling.”
Murray, noting that the first blows against Roe have been landing for years, predicts that the knockout punch would be unlikely to come before the next presidential election. “I don’t think this is a court that would overturn Roe v. Wade with a full stop,” she said. Roberts “certainly wouldn’t do that in an election year.”
But with partisan divides hardening in every other part of society recently, it is perhaps inevitable that those divisions would begin to be felt at the Supreme Court as well, and that Roberts’s instincts toward incrementalism and a desire to keep the court ostensibly neutral might not be able to hold. State legislators are acting on their belief that the moment is ripe to overturn Roe by passing bills they themselves describe as bait. It’s being done with a vigor that has surprised even longtime anti-abortion activists. “Events have overtaken us,” Samuel Lee, an anti-abortion lobbyist in Missouri, told the New York Times. “The advice of lawyers is of less concern than it ever has been in the pro-life movement right now. Sometimes people just want something. Social movements can take on a life of their own.”
Will events overtake the chief justice as well? In addition to responding to pressures from without, he must also corral dissenting voices within, and there are hints that this has been difficult of late. An appeal by the state of Indiana to reinstate a law, struck down by a lower court, that would require a sonogram 18 hours prior to any abortion and mandate burial for fetal remains had been in front of the justices since January, and was apparently discussed at more than a dozen separate conferences, before the court decided to take no action, meaning the law will not take effect. “That’s a long time, and possibly a sign of internal dissent,” said Josh Blackman, a constitutional law professor at South Texas College of Law in Houston.
The justices rarely give reasons for not accepting cases, and it is possible that the push to hear the case came from the right, among justices who wanted to uphold the law, Blackman says, or even use the case as an excuse to overturn Roe. But it is also possible the push came from the liberal justices seeking to “force the court to take it, to see if they are serious” about overturning Roe. “It’s a weird dance between the conservatives and the liberals,” Blackman said.
There will be much more dancing to be done. Although legislatures seem to be elbowing each other out of the way to bring the jackpot “Roe killer” case before the court, the wave of bills passed this month will take years of appeals to get there — and then, most scholars believe, there is little chance they will actually be heard and decided.
“There is absolutely no world in which the Supreme Court takes that case and upholds it unless they are willing to throw out all existing precedent on privacy,” says Benesh of the Alabama law, which only permits abortion if the health of the mother is in serious danger, and which exposes doctors to 99-year jail terms for performing an abortion.
“I agree it will be a much less extreme law,” says Murray. “Any one of the challenges in the pipeline has the capacity to tee up the question.”
And once it is teed — whether by the Louisiana law that he voted to stay, or a separate Indiana law that prohibits abortion in cases of a fetal diagnosis of Down Syndrome, or nearly a dozen other laws potentially making their way to the docket for the next session — it will likely come down to Roberts.
Will he do as he did with the Affordable Care Act and vote against his ideological interests in favor of protecting the nonpartisan image of the court? Or will he do as he did last year, joining the four conservative justices in voting to overturn a 1977 decision requiring workers to pay dues (or “agency fees”) to unions even if they aren’t members? And will he remain the deciding vote long enough for any of this strategizing to matter?
“We could have another vacancy before any of these cases are decided,” Blackman said. “That’s entirely possible.”
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