Supreme Court fallout sheds harsh light on Roberts’ leadership
Chief Justice John Roberts’ leadership of the Supreme Court came to light this week after a leaked draft opinion showed the court’s conservative justices were set to overturn Roe v. Wade.
Among the critics was the feeling that the court had reached the low point of Roberts’ 16 years as leader.
The three Trump-appointed justices have been accused of lying to the American public during their confirmation hearings that they considered Roe to be established law, to approve overturning the landmark 1973 ruling shortly after joining the bench.
The leak itself, one of the most stunning breaches of secrecy in the court’s history, also comes just weeks after an ethics row involving Judge Clarence Thomas and his wife over his involvement in efforts to quash the 2020 elections.
These dynamics are now playing out against the backdrop of a court whose standing with the public has steadily fallen to historic lows, and as new polls suggest, the court is diverging even further from the nation’s majority.
As Americans this week pondered the likelihood of the court striking down the constitutional right to abortion in the coming months, the leaked draft opinion appeared to provide the strongest evidence yet that on many issues, Roberts no longer wields the restraining influence it once had over the more hard-line conservatives at court.
“Roberts is unmistakably conservative, but he prefers incremental change to sweeping change and, at times, joins liberal justices, including in high-profile cases,” said Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. “But there are five justices who are significantly more conservative than Roberts and who clearly want more radical change.”
“It’s evident in the case of abortion, it was evident in Texas abortion law, and we’ll see it in many other areas as well,” he added.
The leaked draft notice would overturn Roe and eliminate federal protections that for nearly five decades have protected the right to terminate an unwanted pregnancy. That outcome would be supported by a majority including Justice Samuel Alito, opinion writer Thomas and the three appointees of former President Trump: Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
At issue is a Mississippi law that bans virtually all abortions after 15 weeks of pregnancy, a direct challenge to Roe’s guarantee of abortion access before fetal viability, around 23 weeks.
The court this week upheld the authenticity of the leaked document published Monday night by Politico, but warned that the judges’ votes and the opinion itself are subject to change before the release of a final ruling, which is expected late. June.
Roberts, while willing to enforce Mississippi’s abortion ban, had sought to find a middle ground between dissenting liberals and the five justices to his right, according to reports from CNN and the Wall Street Journal. The failure of his more modest approach to secure a majority suggests that Roberts was unable to persuade other conservatives to join him, his most likely targets having been Kavanaugh and Barrett.
“The era of ‘the Roberts Court’ ended when Amy Coney Barrett sat on the Court. This appointment has removed Chief Justice Roberts from the political center of the Court,” said Dan Kobil, a professor at Capital University Law School. “Roberts’ incrementalism will become the judicial equivalent of the flagpole of a hundred years ago: a fad that was briefly popular, but which we can no longer understand in a future where raw political power determines the outcomes of Supreme Court decisions.”
Other court observers suggested that the changing composition of the bench offered Roberts more mixed fortunes.
Steve Schwinn, a law professor at the University of Illinois at Chicago, agreed that Roberts had lost some control in the more controversial cases, such as abortion. But he suggested the politically savvy leader could also benefit in other ways by being outflanked to his right.
Roberts has often taken a step-by-step approach because of concerns about the institutional integrity of the court, not because he doesn’t necessarily disagree with the outcome of a case. But on some issues, such as voting rights, Roberts abandoned a laborious approach in favor of a maximalist approach, as in his 5-4 decision in Shelby County v. Holder who gutted a key provision of the Voting Rights Act.
“We know that Roberts does not believe there is a fundamental right to abortion. All things being equal, he might even sign Alito’s draft,” Schwinn said. “He gets the ultimate legal advice he wants, and he also gets to position himself above the fray and as a protector of the Court’s institutional integrity. And when he wants to go for a full-throttle conservative move, he can and does.
In decisions where Roberts is not a majority, it would be up to the senior majority judge to designate who writes the opinion. That role would often be filled by Thomas, 73, who presumably tapped Alito to write the opinion in the Mississippi abortion dispute.
The ultraconservative Thomas has created another kind of headache for Roberts in recent months, over revelations related to the political activities of his wife, Virginia “Ginni” Thomas.
In the weeks following the 2020 election, Ginni Thomas reportedly exchanged dozens of text messages with then-White House chief of staff Mark Meadows that appeared to show her a strategy on how to circumvent the will of the American voters to install Trump for a second term in the White House. despite losing to President Biden, a result she described as “obvious fraud” and “the biggest heist in our history.”
During roughly the same post-election period, Clarence Thomas refused to recuse himself from numerous pro-Trump legal challenges that challenged the 2020 results. And earlier this year he cast the only dissenting vote in a ruling by the Supreme Court that paved the way for the House committee investigating the Jan. 6 insurrection to obtain Trump’s White House records.
The news prompted Democrats to ask Thomas to recuse himself from any future election-related disputes in court. In his three decades on the bench, however, Thomas has never walked away from a case due to a real or perceived conflict of interest arising from his wife’s political activities.
His staunchest critics called for resignation or dismissal. That ethical review may soon relaunch as litigation related to the House panel’s Jan. 6 inquiry progresses through the appeals process, perhaps eventually reaching the justices.
Recent surveys suggest that the eruption of negative headlines has seriously damaged the Supreme Court’s reputation.
In a poll released last month, a majority of Americans, 52%, said Thomas should recuse himself from matters related to the 2020 presidential election.
Other polls this week suggest the court’s draft opinion striking down Roe, if it becomes law, would be out of step with the American public. According to a Washington Post-ABC News poll conducted in late April, a majority says the Supreme Court should uphold the landmark 1973 ruling.
In addition to the fallout over Roe’s likely disappearance, a separate set of questions arose this week regarding the leak itself – prompting a rare public statement from Roberts.
On Tuesday, Roberts ordered the Supreme Court Marshal to launch an investigation into the origins of the leak, which he called a “singular and flagrant breach of trust.” At the same time, however, he sought to minimize its long-term impact on court operations.
“To the extent that this betrayal of court confidences was intended to undermine the integrity of our operations, it will not succeed,” Roberts said in a statement. “The work of the Court will not be affected in any way.”
Whether or not the leak will harm the court’s reputation in the long term, many experts agreed that it would harm relations within the court.
“It needs to create an environment of mistrust between judges and between judges and clerks at least until the court determines who the source is,” said Carter Phillips, a partner at Sidley Austin who has litigated dozens of cases. cases before the Supreme Court. “This is not a useful situation, especially as the Court approaches the final stages of the mandate.”