While this Supreme Court term is not yet over, it is widely clear that the time has come for a major reevaluation of the Chief Justice, John Roberts, who has now voted with the liberal court bloc in enough cases to justify the “liberal” epithet of those who work to fill the courts with conservatives in exchange for money. And although Roberts is surely not a “liberal”, or even a moderate centrist, he certainly is somethingAnd that something is not exactly what it was even a year ago when it was already transforming when the right wing of the court moved further away from the rational center of the United States. Still, John Roberts is not a “judge of justice” in the manner of Sandra Day O’Connor or Anthony Kennedy. Roberts has strategy, while Kennedy had feelings. Roberts is a capable tactician who understands history, public opinion, and how much pressure an institution can bear without breaking. He may also be one of the only magistrates who understands how the modern news cycle works, and has managed to navigate that cycle smoothly, this term as in previous years. If you have a superpower, it is that you know how to do consistent things in small ways, at a time when everyone else is swinging toward the fences.
Monday’s headlines were full of breathless praise for John Roberts, the institutionalist, whose close concurrence in June Medical v. Russo preserved the central possessions of Roe v. Wade and Planned Parenthood v. Caseyand also the fundamental principle that no one but the Supreme Court can set aside the precedent, neither the Louisiana legislature nor the federal courts of appeal. The most important sentence in the attendance of the president of the court on Monday morning should be: “I joined the dissent in Comprehensive women’s health and continue to believe that the case was wrongly decided. The question today, however, is not whether Whole Woman’s Health v. Hellerstedt it was right or wrong, but whether to adhere to it in deciding the present case. “That is not a complete defense of a woman’s reproductive freedom, but rather a full defense of the court as the sole arbiter of a woman’s reproductive freedom. At least it’s worth noting here that there were six separate opinions on Monday, one from each male member of the court. No justice woman wrote a word (very, very “under her eye”).
That is not a complete defense of a woman’s reproductive freedom, but rather a full defense of the court as the sole arbiter of a woman’s reproductive reproduction. freedom.
Roberts’ turnout is classic Roberts: Covering up a big shot to the left in what appears to be a small victory for him. Four years ago in Comprehensive women’s health, the court struck down the Texas Admissions Privilege Act by evaluating that the act would constitute an “undue burden” on a woman’s right to terminate a pregnancy, a standard that in Judge Stephen Breyer’s formulation required a careful balance of Declared benefits of an abortion restriction against your charges. Reading carefully Roberts’ turnout, one sees that in June Medical, managed to recover that standard, replacing it with a much more deferential one that only asks if the proposed regulation is excessively onerous without requiring any benefit consideration. Not only that, it goes further and essentially does what it did in the case of last year’s census and last week’s challenge to DACA’s rescission: it hints that essentially any old pretextual defense of an abortion law will do; He just doesn’t like it when lazy litigants offer sloppy excuses.
The problem for Roberts in June Medical is that the state of Louisiana offered blatantly bad reasons to insist on admitting abortion provider privileges to local hospitals, and then the 5th The United States Circuit Court of Appeals offered sloppy reasons to disturb the findings of the trial court showing that two out of three clinics would close and the women would be charged. As was the case in the census litigation, and the DACA litigation, the result here is correct, but one can reverse engineer the opinion of the Chief Justice to say, “Come back to me with the correct roadmap and I’m all yours. ” “And in fact, he takes your pencil, turns the napkin over and draws the map at no additional cost.
As Mark Joseph Stern and I wrote this time last year, “Lying better next time ” could easily be holding June Medical And states seeking to restrict abortion rights can now do just that, without conflicting with this ruling, as long as they base the laws on better pretextual arguments about maternal health and fetal life and the need for women to take better decisions. Roberts has turned a substantive constitutional right into a sparse debate on regulatory justifications. His scrupulous review of the many restrictions on abortion allowed in Casey It is a useful reminder that nothing is really an “undue burden” if it comes dressed in the correct language of solicitude and benign concern for mothers’ healthy choices. After today, Roberts tells states they want to impose all sorts of unnecessary regulations that it doesn’t matter if they are completely devoid of health benefits, as long as the burdens on women are not so bad.
I note here that Roberts is unique among judges in his ability to capture the news cycle because the nation was already focused on danger and nearsightedness. June Medical as the sole determinant of whether Roe The term would survive. And the court could certainly have used this case as the vehicle to end legal abortion in the United States; it is quite clear that there are four votes to do just that in the coming years. But by narrowing the focus to a yes / no decision in June Medical So many of us in the media and so many news consumers fell into a trap that Roberts has cleverly maneuvered several times. For those who watch at home, it is essential to realize, as does the President of Justice, that the problem today is not only Roe survived or even if Comprehensive women’s health was pruned back to the strictest test in Casey The question is whether there are a large number of religious exemption cases (including the Little sisters case, which is still pending) and a series of state laws that are not identical in nature to those repealed in Texas will effectively end abortion. On those questions, there was no great victory on Monday. You constantly hear about the death of Roe per thousand small cuts, but it’s hard to measure what any of those cuts look like in the daily blender of news coverage. Roberts is, and always has been, a master of doing small things that seem big, and of making big things seem trivial. Whatever else the media does well, identifying those little moments, in the moment, is not always our strong point.
No doubt no one is more grateful than I am that the Chief Justice has chosen, once again, this week, not to tie himself to a conservative legal project that seeks to return women’s rights to the Paleozoic era (thank you, Clarence Thomas! And thanks, Susan Collins, for Brett Kavanaugh!). And that Roberts has parted ways with the radical project that would end all legal abortion in this country for women of color, poor women, women in red states, and women who lack basic medical care is surely something to be commended. But the drum that celebrates Roberts as “liberal” or “moderate” or “evolving” fails to capture what it is. And he is a lifelong conservative, an outspoken opponent of abortion, and an advocate of broad religious liberties who will swallow crucial civil liberties who are also, fortunately, concerned with appearances, institutions, truth, stability, the appearance of adulthood and competition, and most of all, long play. This decision was small, in response to a bold law that should have been repealed without a hearing. At some point, conservative legal activists, and the Justice Department attorneys who do the crazy Bill Barr thing, will stop passing bold new rules that appear to have been written in green crayon on the walls of a playpen. At some point, they will return to lawyering carefully and effectively, as John Roberts has been doing since he himself was a very careful young lawyer. When that happens, they will have five votes in the superior court, and John Roberts will have shown them how to do great.
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