John Roberts Is Nuts if He Thinks Saving ‘Roe v. Wade’ Is Good for the Supreme Court’s Reputation
Conservatives are about to be stabbed again in the back by Chief Justice John Roberts? The danger certainly seems justified.
Recently edited in The Wall Street Journal reminds us that the court is about to rule on a Abortion in Mississippi summon Dobbs v. JacksonN. It has the ability overturn Roe v. Wadewith oral arguments suggesting that the five judges are leaning in that direction.
Catch single? As Journal notes, “an intense lobbying campaign is trying to change their mind” and, in oral arguments, Justice Roberts appears to be trying to “find a middle way. ” More related, Journal speculates that Roberts “may be trying to turn another Justice around right now.”
Back in 2012, Chief Justice Roberts was was persuaded to switch its position on the Affordable Care Act, aka Obamacare. To streamline its decision to comply with the law, Roberts has recruited a little bit judicial gymnastics. A decade later, the prospect of a Court upholding Mississippi’s 15-week abortion ban — while stopping it immediately Roe (ostensibly, the “middle path” Roberts would negotiate)—may require a similar level of creativity.
By changing his mind and preserving Obamacare, Roberts has been praised for protect the Court’s reputation and maintain respect for the institution. This is not the primary motive for making the decision, but it is a moment in history that can be repeated when Dobbs Decisions are made in late spring or early summer. Over at the Volokh Conspiracy, constitutional law professor Josh Blackman suggests that ‘s magazine Warnings may be based on intelligence or leaks from sources close to the Court.
Crucially, there are more Republican-nominated judges now than there were at the time of the Obamacare decision in 2012. Thus, the move would require Roberts to unseat one of the conservative justices. — maybe Justice Amy Coney Barrett or Justice Brett Kavanaugh. Either choice seems unlikely, but like Atlantic McKay Coppins wrote, unlike Judges Clarence Thomas and Samuel Alito, Kavanaugh was “very keen to gain acceptance in polite society”. HotAir’s John Sexton echoes this concern, write: “Kavanaugh’s confirmation hearings were pretty heartbreaking. If he becomes the last vote to preserve Roe and Casey that would be a pretty dramatic way for him to tell all his leftist critics, “You’re wrong about me.”
If you’re a conservative who views abortion as taking innocent lives, then you can clearly see reason to worry about this possible scenario. But my opinion is that people should question the assumption that conservation Roe will strengthen the institution.
Carter Snead, professor of law at the University of Notre Dame (who made a similar point in an amicus summary call on the court to overturn Roe), in a text message to me on Thursday. “Its legitimacy is at greatest risk when it operates politically — pursuing results-oriented results based on its assessment of political winds.”
Snead makes a valid point. Even some famous liberals have advocated Roe admitted that it was a flawed judgment. Ruth Bader Ginsburg Agrees To Be Famous to conservative law critics that the precedent is badly reasoned.
But if the goal is to protect institutions, there’s another factor worth considering: Roberts shouldn’t argue that the biggest threat to court legitimacy comes from the left. Pulling the rug out of the hands of conservatives (again) can lead to some serious undesirable consequences.
Advanced Roe—To preserve the court’s reputation — would constitute another disappointment, in which seemingly conservative judges twisted the text to uphold the landmark legislation that left interest.
This action will not only demoralize those who have contributed the last fifty years of their lives As for this abolitionist cause, it would reinforce the growing view that playing by democratic rules (winning elections, etc.) to the “common good” is a waste Waste of time. In other words, it will strengthen the relations of non-liberal rights.
To be sure, the right is to blame for its own radicalization. But citing explanations is not the same as 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 remained was politics, and — by the estimates of more and more right-wing Americans — working through proper electoral democracy channels has been unable to reverse the cultural drift.
In slogans spanning decades to overturn Roe, the conservative legal establishment has identified, promoted, and nominated highly qualified judges with matching pedigree, academic credentials, and temperament. Bet their judicial philosophy will work in their favor (but not predestined for them) to conservative results.
If this strategy fails (and at this point, anything is irreversible Roe can be understood that way), the next strategy will likely be based solely on guaranteeing results rather than on wisdom.
Be careful what you wish for. If you think the right-wing populist backlash has brought Congress down, just wait until the Supreme Court has its own Matt Gaetz, Marjorie Taylor Greene and Lauren Boebert.