John Roberts is wrong about questioning the court's legitimacy. John Roberts told us so.
The chief justice is now interested in "moving forward." But Roberts earlier explained that the court was ignoring a "fundamental principle" in Dobbs — and that has consequences.
As Chief Justice John Roberts prepares to begin his 18th term as the chief justice of the United States, he would do well to remember the words of, well, John Roberts to understand what is happening to the U.S. Supreme Court — why public support for the court is cratering and the court’s legitimacy is rightly at stake.
Over the weekend, Roberts complained about the criticism the court has received in the wake of its decision to overturn the constitutional right to an abortion, among other decisions. Roberts made the comments at a conference for judges and lawyers held at a resort in Colorado Springs where rooms on one upcoming weekend1 range from about $400 a night to more than $1,200 a night for a suite.
“[S]imply because people disagree with opinions,” Roberts said at the conference, “is not a basis for questioning the legitimacy of the court,” as CNN’s Ariane de Vogue reported.
It is true that the legitimacy of the court is now being questioned. “Positive Views of Supreme Court Decline Sharply Following Abortion Ruling,” Pew Research Center declared on Sept. 1 in a statement released with polling that showed the Supreme Court’s favorability underwater, 48-49. Although within the margin of error, this was a first in the past 35 years of Pew’s Supreme Court polling.
The reason why, though, is not “simply” because of a disagreement with an opinion — and Roberts knows it.
Beyond seeking to insulate the Supreme Court from the consequences of its actions, another key problem with Roberts’s comments is that he himself repeatedly warned about the court’s decisions this past term — and suggested that consequences would follow.
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A little more than a year ago, on Sept. 1, 2021, Roberts parted from his fellow conservative colleagues on whether Texas’s S.B. 8 six-week abortion ban, with its vigilante enforcement mechanism, should be allowed to go into effect.
Roberts described the legislation and, indirectly, the majority’s decision allowing the law to go into effect in rather stark terms — particularly for him.
“The desired consequence [of S.B. 8] appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime,” he wrote in dissent, joined by Justices Stephen Breyer and Elena Kagan. He added that he would keep the law from going into effect while court appeals could be heard and decided “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”
In other words, this was serious stuff. These are topics that reach all the way to the legitimacy of our institutions. The court was allowing a law that purported to ban abortions after six weeks — clearly unconstitutional under Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey — to go into effect while claiming it was saying nothing about whether the law was constitutional.
The other justices who would have kept the law from going into effect were more blunt. “The Court’s order is stunning,” Justice Sonia Sotomayor wrote, also joined by Breyer and Kagan. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
While certainly a more searing statement, the underlying rationale of Sotomayor’s dissent was no different than Roberts’s dissent.
Nearly 10 months later, when the Supreme Court did overturn Roe and Casey in Dobbs v. Jackson Women’s Health Organization, Roberts did not join that part of the majority’s decision. His reason why he did not — and his objection to his colleagues’ decision to do so — was, if anything, more insistent than in his September dissent:
In urging our review, Mississippi stated that its case was “an ideal vehicle” to “reconsider the bright-line viability rule,” and that a judgment in its favor would “not require the Court to overturn” Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). Pet. for Cert. 5.
Today, the Court nonetheless rules for Mississippi by doing just that. I would take a more measured course.
Describing what he wrote was “a simple yet fundamental principle of judicial restraint,” he continued: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them.”
“Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis,” he wrote, concluding that the “dramatic and consequential ruling” was not necessary here.
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It’s been less than three months since the Dobbs decision, but the effects on women and other pregnant people have already been extreme. The dangers they face increase as more and more restrictive laws go into effect.
At the same time, opposition to the decision has, in large part, tracked the precise concerns that Roberts identified. If and when the court fails to exercise judicial restraint as described by Roberts — particularly when it does so in opposition to public opinion — there will be consequences. And, there have been consequences, as support for abortion rights has coalesced, in votes on abortion measures and in special elections where the issue has loomed large. There also, unsurprisingly, have been consequences for the court itself.
The past term was “difficult in many respects,” Roberts said in Colorado, in an apparent reference to the court being closed to the public, the Dobbs leak, the fallout following the leak, and the fencing that subsequently went up around the court.
“I think just moving forward from things that were unfortunate is the best way to respond,” Roberts told two fellow judges during their “fireside chat” at the conference, noting that the high fencing is gone and announcing that the court will be open to the public again for the court’s upcoming term.
In light of his complaints about the criticism of the court in the wake of Dobbs, it’s hard not to see this also as his plea to the country about the Dobbs decision itself.
And, in that sense, Roberts’s first public comments since Dobbs show a great failure to appreciate what the decision has done. Even as the consequences of the Dobbs decision are dramatically and unavoidably felt by women and other pregnant people across the country — and by many others outside of the Supreme Court, both personally and politically — Roberts apparently believes the justices are exempt.
For those within the Supreme Court’s marble walls, Roberts would have us believe, decisions shouldn’t have consequences.
Thankfully, he’s wrong.
John Roberts told us so.
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The weekend of Nov. 18, as of a Sept. 11 search.