A few years back, I wrote a VIP piece: John Roberts Is the Most Dangerous Man in America. The Chief Justice has sided far too often with the radical leftist wing of the Supreme Court, despite his nomination by a Republican president with the implied mandate to lean toward conserving the original intent of the United States Constitution. In his role, he has often invented law to preserve unconstitutional acts like Obamacare, DACA, church lockdowns, and the like. Each time, he has acted more as a technocrat than as a constitutionalist, with a strong preference to punt on the hard stuff. When he sided with the liberals to refuse to take up a case in which the State of Nevada limited church services to 50 congregants without applying similar limitations to other large gatherings at the height of unconstitutional lockdown madness, I wrote:
This decision, notably lacking any courageous explanation by the majority, has far-reaching consequences. The precedent allows other states to act on their desires to shut down churches, and only churches, in the name of fighting the pandemic.
Roberts has made a career out of twisting himself into logical and legal pretzels in order to side against the conservative, originalist, textualist justices on the Supreme Court. Conservatives expressed concern when President George W. Bush nominated him.
We found out those concerns were well-founded in the Obamacare decision. He established the template for future decisions with that one, when he invented from whole cloth the notion—not even argued by Obama’s attorneys—that the personal coverage mandate constituted a tax, and therefore passed Constitutional muster.
Since then, he has utilized similar inventiveness and imagination to conjure up all sorts of rulings. In his decision not to rescind DACA, he acknowledged that the policy wasn’t illegal, but decided that the Trump administration didn’t apply to rescind it properly.
Fast forward to the Leak Heard Round The World. Late last night, Politico published the contents of a draft decision, apparently written in February and scheduled for release in June or July, that would strike down Roe v. Wade. The threat to the legitimacy of the judicial system cannot be overstated. The leak was clearly intended to apply public pressure to a private, confidential, deliberative process to interpret the constitutionality of a law limiting abortion in Mississippi. All of a sudden, the antifa tactics of the Summer of Love, BLM burning down buildings, and riots across America’s cities have been invited to the steps of the Supreme Court. If activist clerks, employees, or, heaven forbid, a rogue justice leaked the document, it could split the nation apart. It has already sent shock waves, undermining the stability of the institution.
Roberts, to his credit, has reacted swiftly:
This morning, in the aftermath of the story in Politico revealing a secret draft decision that would overturn Roe v. Wade, Chief Justice John Roberts issued a statement regarding the leak. Roberts, reacting to the threat to the functioning of the Supreme Court, confirmed the authenticity of the leaked document. He lauded the loyal and confidential nature of permanent staff and legal clerks alike. At the same time, he blasted the intent of the leak, saying, “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.”
Roberts seems to acknowledge the partisan and political intent of the leak in this statement and the existential threat it poses to the operation of the court. Legal observers have reacted with disgust at the leak, calling it an earthquake that threatens the very integrity of the institution.
Pending the results of this investigation, Roberts could potentially go one of two ways on this. The more I observe him on the court, the more trepidation I experience in placing any trust in him. It depends on what is more important to him: finding compromise on the proposed decision to overturn Roe v. Wade or preserving the integrity of the highest court in the land.
The leak has made this choice mutually exclusive. It forces his hand, which may have been the intent all along.
The first possibility: Roberts, recognizing the opportunity to restore faith and trust in the court, shows no mercy in investigating everyone involved in the leak, naming names and exposing the full extent of the operation, all the way to the top — even if it ultimately implicates a sitting justice. This would go a long way toward tamping down the beast threatening to escape Pandora’s box. It would also galvanize the five “yes” votes on the court, giving those justices assurance such a threat could never ultimately affect the inner workings of the court.
The second possibility: Roberts, recognizing the opportunity to influence the ultimate decision, uses this crisis to warn the reported five justices who voted for the draft decision that the country could come apart. Seeing the rending of garments and gnashing of teeth playing out across cable news overnight, Roberts could try to persuade them to support a different outcome. According to the original Politico report, it would only take one flipped vote for the decision to go from 5-4 in favor of overturning Roe to 4-5.
According to CNN, Roberts reportedly is a halfway vote against overturning portions of Roe while upholding the Mississippi law at hand:
It appears, according to Politico’s report, that five justices were willing to vote to overturn Roe. Roberts did not want to completely overturn Roe v. Wade, sources tell CNN. At the same time, he wants to uphold the Mississippi law. That would leave the four justices willing to join an Alito opinion overturning Roe outright to be Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Just a few days ago (or last week, which seems like an eternity), PJ Media’s Matt Margolis reported:
Roberts is reportedly trying to get justices to side against upholding the Mississippi law that bans abortions after 15 weeks, which is at issue in the Dobbs v. Jackson case. According to The Wall Street Journal, following oral arguments on Dec. 1, Justices Thomas, Gorsuch, and Alito indicated they were “likely votes to sustain the law and overturn both precedents,” while “Justices Kavanaugh and Barrett seemed, in their questioning, to side with the three conservatives …”
But here’s where things get interesting: Chief Justice John Roberts reportedly tried during the oral argument to “find a middle way.”
If [Roberts] pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.
The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.
According to Josh Blackman at The Volokh Conspiracy, “This seems like very, very specific information. Has there been a leak? And which (singular) colleague is Roberts trying to turn?”
So, once again, the fate of constitutional fealty and the original intent of the Founders is in the hands of a technocrat with a history of inventing law not written or argued. Will Roberts cement himself as the ultimate judicial activist and turncoat to the constitution, or will he recognize the moment in history and rebuild the foundations of the Supreme Court in its role of interpreting the constitutionality of laws that come before it?