Chief Justice John Roberts lost the Supreme Court and the defining case of his generation

Friday’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned nearly half a century of precedent, will be a seminal case in the annals of law and learning. It will be associated with the landmark Roe v. Wade of 1973 which declared a constitutional right to terminate a pregnancy, as did Brown v. Board of Education of 1954, which ended the “separate but equal” doctrine and began the desegregation of schools, has long been linked to Plessy v. Ferguson, the 1896 ruling that allowed separate but equal housing for blacks and whites.

Yet where Brown secured the rights, of course, Dobbs eliminated them.

It was a sober, even humble Roberts who wrote — alone — as he parted ways with both conservatives who dissolved a constitutional guarantee and liberal dissidents who expressed their grief for American women and highlighted guard against further erosions of privacy.

The 67-year-old chief justice, who is completing his 17th session, confessed to a rare lack of confidence.

“The Court’s opinion and the dissent display an implacable freedom of doubt on the legal question which I cannot share,” he wrote. Referring to the contested Mississippi law at the heart of the Dobbs case, he added: “I’m not sure, for example, that a ban on terminating a pregnancy from the moment of conception should be treated as same manner under the Constitution as a ban after fifteen weeks.”

Roberts, who pushed hard for conservative results on race and religion, had tried to move incrementally here. He tried to split the difference, upholding the disputed Mississippi law that bans abortion after 15 weeks of pregnancy, but not confronting Roe.

“I would take a more measured course,” he wrote and urging – to no avail – for some judicial restraint, said: “If it is not necessary to decide further to dispose of a case, then it is necessary not to decide further.”

Yet even though Roe’s overthrow represents a significant defeat for Roberts and is a singular and stunning moment for the country, the leader is down but not out. The 2005 appointee of Republican President George W. Bush generally remains on the winning side of this ideologically unbalanced bench.

Just a day before Dobbs, Roberts was part of the supermajority that struck down a handgun law in New York and dramatically expanded Second Amendment rights. Earlier last week, he wrote Opinion 6-3 asking states that subsidize private schools to include religious education, further violating the separation of church and state.

Roberts has taken the lead against racial remedies, deeming them both obsolete and unconstitutional, and authored Shelby County’s subsequent 2013 decision against Holder, reducing voter protections, particularly in the South and in other places with a history of discrimination at the ballot box.

Yet Friday’s Dobbs decision was monumental and will mark the era of Roberts Court, even if it was overtaken by abortion rights precedent by Judge Samuel Alito, who wrote the Dobbs decision, and the judges Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

These last three judges were appointed by former President Donald Trump, and their mere presence had encouraged Mississippi officials to seek an expansive ruling in a case that was originally limited to the validity of the 15-week ban. .

The three Liberals who were outright dissenters remarked on how quickly the relatively new five-judge bloc, secured by the addition of Barrett in 2020, moved to reverse Roe.

In doing so, they wrote, “this Court betrays its guiding principles”. They said they felt sorry for the court itself, but more “for the many millions of American women who today have lost fundamental constitutional protection.”

The right is tired of waiting for “another day”

Roberts’ fate on the losing side of Dobbs was heralded last year when he sharply dissented as the same five conservatives who controlled the Mississippi dispute allowed Texas to enforce a six-year abortion ban. weeks, known as SB8.

“The clear objective and actual effect of SB 8 has been to overrule the decisions of this Court,” including Roe v. Wade, Roberts wrote last December as the five justices approved the Texas ban they had first allowed to take effect on September 1.

It was a sign that the tactical and usually persuasive chief justice, who himself criticized abortion rights, was outmaneuvered by a quintuple who wanted to go further, faster.

Barrett’s estate of the late liberal Justice Ruth Bader Ginsburg, of course, diminished Roberts’ bargaining power. His nomination turned what was a Conservative-Liberal 5-4 court into a 6-3 bench, where Roberts no longer holds the crucial fifth vote for either wing. As the far right showed in Dobbs: it doesn’t need the leader.
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Roberts had offered a limited resolution during oral arguments last December, but apparently never had any real momentum against the anti-Roe five. There was no sign in the opinions published on Friday that those who had joined Alito had hesitated to think that “Roe had been gravely mistaken from the start. His reasoning was exceptionally weak and the decision had adverse consequences.”

Kavanaugh, who at times joined Roberts in the compromise, stuck to a line of argument he tried in closing arguments that overturning Roe puts the court in a ‘position of neutrality’ on the abortion dilemma. .

Roberts declined to respond to this claim in his concurring opinion, but dissenting justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote that eliminating the right to abortion “does not take a ‘neutral’ position”.

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Roe and the 1992 case that largely reaffirmed him, Planned Parenthood v. Casey, had prevented states from interfering with a woman’s right to terminate a pregnancy before a fetus was viable, meaning it could live outside the womb. Viability occurs at approximately 23 weeks.

Roberts sought to “leave for another day if any abortion rights were to be rejected”.

Alito dismissed that possibility, saying that “‘another day’ would soon come. Some states have shorter abortion deadlines than Mississippi.”

He said that “Roberts’ quest for a middle way would only delay the day when we would be forced to face the issue we are now deciding. The turmoil caused by Roe and Casey would be prolonged. That is much better – for this Court and the country – to deal with the real problem without further delay.”


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