How the future of Roe is testing Roberts’s clout on Supreme Court
"The explosive leak of a draft Supreme Court opinion that would overturn Roe v. Wadenot only focused the nation on the magnitude of the change facing abortion rights, it also signaled the rise of a rightward-moving court that is testing the power of fellow conservative Chief Justice John G. Roberts Jr.
As the country awaits a final decision, the intense deliberations inside a court closed to the public and shaken by revelations of its private negotiations appears to be not between the court’s right and left, but among the six conservative justices, including Roberts, in the court’s supermajority.
The mere existence of the draft indicated that five justices had voted at least tentatively to reject Roberts’s incremental approach to restricting abortion rights. Instead, they would reverse Roe after nearly 50 years of guaranteeing a right to abortion that could not be outlawed by the states.
The fact that Justice Samuel A. Alito Jr. authored the draft is a sign Justice Clarence Thomas, the court’s longest-serving member and the only one to write that he would overturn Roe, asserted his seniority to chose who would get the job. In Alito’s more than 16 years on the Supreme Court, he has supported every government restriction on abortion that has come before him.
It is another signal that the 67-year-old Roberts, hailed by scholars just a few years ago as one of the most powerful chief justices in history, is not in control of the process as the court readies its most influential decision in decades.
There is also reason to believe Roberts has not given up. Many who know him well and have watched his maneuvering of the court through other issues are certain he is still preparing his own opinion in hopes he might draw at least one of the court’s newest conservatives to his side. Such an outcome might save 1973′s Roe and the subsequent affirming 1992 decision, Planned Parenthood v. Casey, while severely limiting their protections.
In a statement confirming that the draft opinion leaked to Politico was authentic, Roberts stressed two points: “it does not represent a decision by the Court or the final position of any member on the issues in the case.”
The coming weeks will tell whether Roberts’s assertions are telling, or mere formalities.
Overturning Roe would mark the culmination of decades of work by the conservative legal movement. This is a tense, even ominous, moment at the court, where justices are circulating drafts of opinions and dissents. A final decision could come at any time before the court finishes its work at the end of June or early July.
There are indications of extraordinary security measures for the justices. An “unscalable” black fence has been erected around the court, in anticipation of protests to come. Alito canceled an appearance last week at a conference for judges and lawyers in Nashville. Those who do travel do so only with heightened security details. Some on the left are encouraging protests at the justices’ homes.
Relations between the members of the court have appeared brittle at times throughout the term, fueled with disagreements large and small between the court’s three liberals — retiring Justice Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — and the conservatives — Roberts, Thomas, Alito and President Donald Trump’s three nominees to the court, Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
Roberts has sometimes sided with the liberals in some of those disputes, particularly when he thought the authority or reputation of the court was at stake.
Roberts’s incremental approach was evident when the court held oral arguments in December in Dobbs v. Jackson Women’s Health Organization. It concerns Mississippi’s law, which has never gone into effect, banning almost all abortions after 15 weeks of pregnancy. Roberts seemed to get no takers for a compromise that would erase the bright-line rule that Roe and Casey share: that states may not forbid abortions before viability, the point at which a fetus would survive outside the womb, usually 22 to 24 weeks.
Most observers of the court believe Roberts is still promoting a decision that would remove the viability line but otherwise keep Roe and Casey intact. Both liberals and conservatives are skeptical it can be done.
“He is a magnificent lawyer,” Miguel Estrada, who frequently argues before the Supreme Court, told a conference of judges and lawyers last week in Atlanta. “I’ll be interested to see what he comes up with.”
The leaked draft of Alito’s opinion is dated February 10 and is almost surely obsolete now, as justices have had time to offer critiques, dissents and revisions. But as of last week, the five-member majority to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter.
A person close to the court’s most conservative members said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now. But the other conservatives were more interested in an opinion that overturned the precedents, the person said.
A spokeswoman for the court declined to comment, and messages extended to justices were unreturned.
“This is the most reasonable explanation for why Alito wrote the opinion,” said Estrada, who is a leading figure in conservative legal circles. Thomas “would be the senior conservative justice in the majority and Thomas would control who wrote the majority opinion.”
The conservative Wall Street Journal editorial page made similar points in a recent column that warned Roberts was trying to coax Kavanaugh and Barrett to join him. The court’s right flank is sometimes divided that way, with Thomas, Alito and Gorsuch pushing for aggressive changes in the law, and Roberts, Kavanaugh and Barrett more content to move more incrementally.
Roberts is hardly a supporter of abortion rights. But he is a fierce defender of the court’s reputation, which he believes suffers when the public perceives its decisions as a reflection of the political backgrounds of its members.
In his 2016 campaign Trump said he favored overturning Roe and “that will happen, automatically in my opinion” because of the justices he would appoint.
If the court follows through, it would be a speedy resolution. The change would come less than two years after Trump’s third nominee, Barrett, was elevated to the Supreme Court.
There are several high-profile issues before the court — gun rights, for instance — in which Roberts is likely to be in the conservative majority. But his institutional instincts sometimes seem to put him in the position of making choices at odds with his conservative leanings.
Besides a historic vote to save the Affordable Care Act, he joined liberals in 2020 to stop the Trump administration from dismantling the Obama-era program to protect undocumented immigrants brought to the United States as children, and to strike down a restrictive Louisiana abortion law.
Roberts said the Louisiana law, requiring abortion providers to have admitting privileges at nearby hospitals, was comparable to a Texas law the court had overturned in 2016 and that the legal principle of “stare decisis” required the court to treat “like cases alike.”
Roberts had dissented in the Texas case, but he said precedent took prominence, and the court had not been asked to upend the court’s past decisions protecting abortion rights.
But the court’s center of gravity has shifted since then, with Kavanaugh replacing Justice Anthony M. Kennedy — one of Casey’s authors — and Barrett taking the seat of Justice Ruth Bader Ginsburg, probably the court’s most fierce advocate of abortion rights.
Roberts’s diminished role was evident earlier this term in another abortion case, when the court voted 5 to 4 that an unusual law from Texas could not be challenged in federal court before it went into effect.
Roberts voted with the liberals in September to try to stop the ban, which empowers private individuals to sue anyone who helps a women terminate her pregnancy after the six-week mark. He characterized the Texas statute’s enforcement design “not only unusual, but unprecedented” and said it deserved more judicial scrutiny.
In December, the court reconsidered, but ultimately again left in place the law that has forced Texans to leave the state to seek abortions. Roberts, joined again by the three liberals, cast the law as an attack on the court’s authority.
“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts wrote, adding that “the clear purpose and actual effect of [the Texas law] has been to nullify this Court’s rulings.”
Roberts quoted Marbury v. Madison’s seminal holding that it is "emphatically the province and duty of the judicial department to say what the law is.” He quoted precedent saying that if legislatures are allowed to undermine rights established by Supreme Court decisions, "the constitution itself becomes a solemn mockery.”
“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.
All he needed for his side to prevail was for one of the five justices in the September decision to join him. But in three months from the original decision to the reconsideration, he was unable to do so.
It is unclear how the extraordinary disclosure of the court’s usually private inner workings in the Mississippi case might affect it and other cases.
Roberts called the leak “absolutely appalling” and ordered the Marshal of the Supreme Court, the in-house police service, to begin an investigation into the circumstances. The huge community of judges, clerks and lawyers with ties to the court has been ignited, with calls and texts to one another comparing theories and clues as to whether someone from the left or the right pierced the court’s protocol.
“This is a historic, unprecedented, and tragic breach of the Supreme Court’s confidential deliberative process," said Michael Luttig, a retired appellate judge and leader in the conservative legal community. “And unfortunately, it comes at time when the Supreme Court’s very legitimacy is being questioned.”
Luttig said the court “can never recover” from the sharing of the draft, an act that solidifies the growing public suspicion that politics rather than objective adherence to law infuses the court’s work.
“One has to believe the leaker of this draft opinion disgracefully intended to feed and drive the developing narrative of the Court’s illegitimacy,” he said. "Whatever his or her motive, it is a breathtaking act of dishonor and betrayal of our highest court and of our country.”