Open Thread: Flap Your Arms & Fly Away, Chief Justice Roberts

Dahlia Lithwick, at Slate:

The trouble that the media is having in settling on a coherent frame for this specific decision is both entirely the problem and entirely beside the point. The real story of the two decisions in U.S. v. Texas and Whole Woman’s Health v. Jackson is that Chief Justice John Roberts has now lost control of his court. As was the case in the very first shadow docket order that allowed S.B. 8 to go into effect, despite abundant evidence that it was materially harming pregnant people and clearly violated Roe v. Wade, the vote today was 5-4, again with the court behaving as though there is nothing unusual about the Texas scheme. The chief justice had over three months to change a single mind on the conservative flank of the court. He failed to do so. Writing for those five justices, Neil Gorsuch lays out myriad stumbling blocks and problems with the abortion providers’ theory before granting them very limited relief against four state licensing officials who have some authority to enforce S.B. 8.

The chief justice, concurring in part and dissenting in part, pointed out that the purpose of the law was to evade judicial review: “Texas has passed a law banning abortions after roughly six weeks of pregnancy. That law is contrary to this Court’s decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.” He describes Texas’ enforcement mechanisms as “an array of stratagems, designed to shield its unconstitutional law from judicial review.” He goes on to note that “these provisions, among others, effectively chill the provision of abortions in Texas.” All of these statements are facts. To address the problems they lay out, he would add the attorney general and a state court clerk back to the list of folks who could properly be sued…

The problem at the heart of the perception of John Roberts’ moderating influence on the court was that it was always about public perception. When he was still theoretically in charge of the conservative supermajority, his approach was in fact that it could do anything, so long as it didn’t look too radical. Some of us came to confuse that with moderation. But public perception is malleable and can be measured on a sliding scale. Five justices want you to call a narrow loss a “win” for abortion rights, and they want you to think of state nullification as “novel.” They will keep saying that over and over until one concedes that it’s true, and when Dobbs comes down this summer, they will tell you there is nothing radical in doing away with the right to choose. They will assume that if you accepted nullification in September, you’ll be open to overt bans come spring.

Roberts is credited with soothing us that Supreme Court justices are never doing anything more than calling balls and strikes. But under his watch, a conservative supermajority has changed the strike zone, corked the bats, and set the whole infield on fire—all while telling us that the game remains the same. They managed all that with the help of one Chief Justice John Roberts. What this tiny, narrow, wholly radical ruling reveals is that Roberts is now alone in his concern that the fans might soon figure all this out. His problem? He’s not the one calling the game anymore.

You want to let your benchmates know how you really feel, Chief Justice? Flap your wings, instead of your gums. Retire now, and let President Biden appoint your replacement. If your judicial philosophy is as strong as you claim, the court will still have five True Constitutional Conservatives(tm), so it won’t make a difference to future court opinions. You’re 66 years old, you and your corporate-lawyer wife are presumably ‘comfortable’ financially, and staying in the SC(R)OTUS is going to be nothing but a series of public embarrassments and humiliations for the foreseeable future. You’ve got your nice life — lovely wife, grown kids, possibly future grandkids — and a lot of high-profile media attention to look forward to; why spoil it with all this pointless public agitation?

Do yourself and the rest of us a favor, Chief Justice — go away, while you can do it with some semblance of dignity.

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