The Supreme Court has just handed down a pair of decisions that illustrate an important truth: Chief Justice John Roberts is not, as many conservatives believe, some kind of traitor to their cause, an unreliable ally who will stab them in the back whenever he gets the chance. In his own way, he’s as devoted to the fortunes of the Republican Party as any of the other conservative justices. But unlike Samuel Alito (generally recognized as the most partisan judge on the court) or Brett Kavanaugh (who will almost certainly challenge Alito for that distinction), Roberts is playing a longer game. He’s trying to save the GOP from itself.
Let’s begin with the decision on abortion where Roberts sided with the four liberal justices to prevent a Louisiana “TRAP” (Targeted Regulation of Abortion Providers) law from taking effect before the court hears a challenge to it. The Louisiana law was almost identical to a Texas law the court struck down before Anthony Kennedy retired. Thus, the four justices who dissented in the Louisiana case were saying not just that the previous decision should be overturned but that the precedent itself is utterly meaningless and can be ignored even before they overturn it if the law in question has the salutary effect of making it impossible for women to exercise their reproductive rights. That’s not how they put it, of course, but that’s the essence of their position.
Pro-lifers were naturally outraged. But their anger at Roberts is completely misplaced. Roberts is no less committed than ever to seeing abortion rights eliminated. But he seems to want to do it carefully, in a way that minimizes the inevitable backlash against the Republican Party.
Roberts, one must understand, voted to uphold the Texas TRAP law in the original case. Which means he will almost certainly vote to uphold the Louisiana law once the court hears it in full. But he doesn’t want to just jump into it, as the other four justices on the right did, without making it seem like they’ve considered the issue carefully. Had Roberts sided with the other conservatives, “it would have been a signal to Republican judges throughout the country that the Supreme Court may not enforce decisions that the GOP disagrees with,” as Ian Millhiser put it. If they’re going to eventually uphold the Louisiana law anyway, it’s much better not to be so obvious that they’re just out to destroy abortion rights wherever they can.
And when they do uphold the Louisiana law after a full hearing, that’s what Roberts will accomplish. Rather than repealing Roe v. Wade outright, it’s probably the best way for conservatives to achieve their goal of getting something identical to a repeal while avoiding at least some of the ensuing controversy.
That’s because as it stands now, state laws are not allowed to place an “undue burden” on a woman’s right to choose, putting so many obstacles in her path that it becomes difficult or impossible for her to exercise her rights. Increasing that burden is what conservative states have been doing for years, requiring things like waiting periods and forced ultrasounds, or imposing so many unnecessary regulations on providers that almost no one can meet them, leaving states with only a tiny number of providers. As a result of TRAP laws, there are now multiple states with only a single abortion provider.
But if the Supreme Court were to overturn its ruling on the Texas law and validate the Louisiana law, it would have effectively overturned Roe v. Wade, yet in a way that won’t produce screaming headlines reading “Roe Overturned!” The ruling would instead be a green light to Republican-run states that the court will judge virtually no burden to be “undue.” The conservative states that would outlaw abortion if Roe fell will then simply pass TRAP laws so onerous that nearly every abortion provider in those states will be forced out of business. The effect — abortion legal in Democratic-run states and essentially illegal in Republican-run states — will be the same.
If your goal was to destroy Roe and to minimize the backlash Republicans will suffer at the polls, that’s how you’d do it. And Roberts is smart enough to know that with polls showing around two-thirds of Americans against Roe being overturned, that backlash could be enormous.
So on issues like that one, Roberts will tread carefully, trying to accomplish conservative goals while protecting the Republican Party from the consequences of its worst instincts. The same is true of the Affordable Care Act where Roberts declined to join the conservatives in striking down the entire law, instead crafting a compromise that upheld most of it while allowing states to opt out of the Medicaid expansion (thereby denying health coverage to millions of poor Americans). Had the whole law been struck down, the consequences could have been cataclysmic, among other things making the arrival of universal government-guaranteed health care much more likely.
As a comparison, let’s look at the other case the Supreme Court handed down yesterday, concerning a Muslim death row inmate in Alabama who requested to have an imam present at his execution. The state denied his request, telling him that he could have a Christian chaplain or nothing. This is not even a close call; you could look far and wide and not find a clearer and more egregious violation of the establishment clause of the Constitution. But John Roberts, along with Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, ruled that the inmate had waited too long (five whole days) to file his claim, and therefore he can be executed without a representative of his faith in attendance.
These two cases are about very different subjects, but there’s something else important that distinguishes them: The religious freedom case is unlikely to get much attention. That’s in part because the plaintiff is unsympathetic, but also because the only people criticizing the decision will be legal scholars and the occasional liberal pundit. There will be no organized outcry from those on the right who claim to believe deeply in religious freedom, because what those people actually believe in is a sectarian version of religious “freedom” that actually means little more than that special privileges should be granted to conservative Christians.
John Roberts has been there for them in that quest, in cases like Hobby Lobby that carved out areas where Christians need not follow laws they find displeasing. And let’s not forget all the other times Roberts has joined with his conservative colleagues to accomplish right-wing goals. He eviscerated campaign finance law in Citizens United. He created for the first time an individual right to own guns in District of Columbia v. Heller. He gutted the Voting Rights Act in Shelby County v. Holder.
In short, you could argue that John Roberts is actually the most loyal Republican on the Supreme Court; it’s just that unlike, say, Alito, he knows when the GOP has gone too far out on a limb and needs to be carefully reined back in for its own good. And that’s what he’ll keep doing.