How Chief Justice Roberts Solved His Abortion Dilemma by Linda Greenhouse
For the moment, the right to choose is safe. But the outlook is ominous.
'Here’s a thought experiment. You’re John Roberts, not only the chief justice of the United States but the head of the entire federal judicial branch. After 15 years on the job, you find yourself in an exquisitely tough spot.
On the one hand, you’re confronted with a rogue court — the United States Court of Appeals for the Fifth Circuit, one of the 13 appeals courts that, like all “lower” federal courts, are bound to follow the law as the Supreme Court hands it to them. Four years earlier, your court reversed the Fifth Circuit and ruled that a Texas law imposed an unconstitutional “undue burden” on women’s access to abortion.
And what did the Fifth Circuit turn around and do? It upheld an identical law in Louisiana on the ground that, well, Texas was Texas and Louisiana wasn’t. Clearly, you can’t ignore such blatant defiance.
On the other hand, you dissented four years ago from that decision, Whole Woman’s Health v. Hellerstedt. You didn’t like it then and you don’t like it now. . . But you can’t join the four colleagues who are voting in dissent without rewarding the Fifth Circuit’s defiance.
What to do?
We found out on Monday how Chief Justice Roberts resolved his dilemma: He provided a fifth vote to strike down the Louisiana law without signing Justice Breyer’s opinion, instead offering his own interpretation of the Supreme Court’s abortion jurisprudence. . .
So, yes, the court and the country owe Chief Justice Roberts a lot. One thing we owe him, it seems to me, is to take as seriously as he certainly did the subtle moves he made in Monday’s case, June Medical Services v. Russo. My purpose in this column is to unpack his separate opinion, put it side by side with the Breyer opinion that he declined to sign, and consider the implications of the difference between the two.
To do that requires an excursion into abortion case law, the law established by the court’s decisions. . .
The chief justice did his own balancing, of course, in confronting the dilemma that the recalcitrant Fifth Circuit handed him. He balanced what he had to do in his institutional role with what we might assume he would want to do in the absence of institutional constraints. Would he overturn Roe v. Wade and Casey? Almost certainly. Will that day come? It hasn’t yet.
In these days when we all crave some rare good news, I want to end on a more upbeat note. When the long-awaited June Medical decision showed up on my computer screen on Monday morning and I saw the bottom line, the Supreme Court’s amazing past two weeks flashed into my mind, the cases colliding with one another: expanding the rights of L.G.B.T.Q. people against discrimination, protecting the Dreamers from deportation, and now, in this particular context at least, protecting the right to abortion. It’s only a moment, for sure, but the Roberts court, against all expectations, has made this battered country a better, safer place. For now.'
https://www.nytimes.com/2020/07/02/opinion/supreme-court-abortion-roberts.html?