A conservative veteran of Supreme Court confirmation battles, Curt Levey, said he thinks the approach of maintaining the 15-week ban and leaving other matters to other cases is entirely right. consistent with Roberts’ stated philosophy.
“If adjudicating means anything, it means not going beyond what you need to decide a case,” said Levey, executive director of the FreedomWorks Foundation. He said he found Roberts’ rationale for upholding the Affordable Care Act’s individual mandate far more perplexing and distorted than the position on abortion rights he appeared to be advocating last December.
“I’m used to Roberts being unprincipled [but] here it was perfectly plausible,” Levey added. “I’m not going to lie and say I don’t think the cleanest thing would be to just cancel it, but he certainly didn’t make me mad.”
Some scholars note that there is clear precedent for a Supreme Court opinion that purports to preserve the fundamental right to abortion while allowing further intrusions on that right. This is exactly what happened in 1992, while many expected the disappearance of deer. Instead, a highly unusual joint opinion of three judges in Casey fall Roe’s quarterly framework for abortion restrictions, moved to a standard involving the viability of a fetus, and instructed courts to consider whether state-imposed limits create an “undue burden” on those seeking abortion abort. None of these three judges – Sandra Day O’Connor, Anthony Kennedy and David Souter – remain on the court.
“It radically changed the pre-existing legal doctrine without nullifying what the prevailing opinion called the essential holding of Roe v. Wade”, said Daniel Conkle, a law professor at Indiana University. “Yes, it takes some judicial creativity, one might say, but it wouldn’t be hard to imagine Chief Justice Roberts writing an opinion of a somewhat similar nature.
However, Conkle noted that court abortion decisions tend to attract extraordinarily intensive attention from lawyers, academics and the public, meaning that soft opinion is likely to be quickly attacked.
“The proof is in the pudding to some degree whether Roberts is writing an opinion that can stand up to that kind of scrutiny,” the professor added.
Roberts’ comments during last December’s arguments weren’t the only sign that he may be more inclined than his fellow Tories to back away from the brink of reversal deer.
Two years ago, Roberts sided with the liberal wing of the court to block a Louisiana law that could have forced the closure of all but one abortion clinic in the state. He said the measure was virtually identical to a Texas law that Supreme Court liberals and Kennedy voted to block in 2016.
Roberts voted for the Texas law to go into effect, but he said that once the court finds the measure too onerous, the court should not rule the other way in Louisiana just because Kennedy left. the court and was replaced by Judge Brett Kavanaugh.
Opinion that upholds Mississippi’s 15-week ban but claims to leave deer in place could also prevent the court from being at the center of a hot summer of abortion protests. Keeping the court out of the political spotlight as much as possible has also been another of Roberts’ goals, noted Cardozo law professor Kate Shaw.
“I think it would, from Roberts’ perspective, have the benefit of slowly acclimating the country to the erosion of abortion rights and could potentially dampen the outrage and the response,” said Shaw, who was a law clerk to Judge John Paul Stevens. “It’s absolutely Roberts’ playbook. … From Roberts’ perspective, this could be some sort of PR advantage for the court.
However, Shaw thinks Roberts’ efforts could result in so little delay that he or others might conclude it just isn’t worth it.
“All this would only delay the deliverance of this Dobbs draft for about a year,” she said. “All it would do is slow down the inevitable.”
Of course, the Supreme Court‘s current ideological calculations mean that Roberts’ views could boil down to a historic footnote unless he can persuade one of his Republican-appointed colleagues to join. him in a probably more centrist approach to abortion, because as long as it can last.
“It doesn’t seem inconceivable to me that he could convince Kavanaugh to join that opinion,” Shaw said.