Chief Justice John Roberts sided with the liberal justices on Monday morning to defend abortion rights in a case called June Medical Services v. Russo. That follows his decision to temporarily uphold the Deferred Action for Childhood Arrivals program (DACA) and his decision to uphold gay and transgender rights under the Civil Rights Act earlier this month. Even on the big, end-of-term case in which he did side with conservatives, Roberts ruled that the president could fire the director of the Consumer Financial Protection Bureau (CFPB), but he did not rule that the entire bureau was unconstitutional, as conservatives hoped he would.
Is John Roberts becoming a “moderate”? Is he turning into another “failed conservative,” like former justices John Paul Stevens, David Souter, and Anthony Kennedy—who were all Republican appointees that ended up siding with progressive majorities in key cases?
No. Roberts is the same hardcore Republican in robes that he’s always been. It’s not that Roberts has shifted to the left; it’s that the cases he’s being asked to decide have lurched so far to the right that Roberts cannot follow where the conservatives want to go.
If you only read the “good points on both sides” legal coverage, it’s easy to miss how entirely unhinged conservative legal theories have become. The cases conservative lawyers feel empowered to bring to the Supreme Court since alleged attempted rapist Brett Kavanaugh was installed as a fifth conservative vote are madness. Kavanaugh arrived on the court and suddenly every conservative zealot with a few dollars and a legal pad decided to shoot their shots. The way to understand this term is to imagine Roberts banging on a gavel and yelling “order” while his conservative colleagues try to rewrite the Constitution with a sharpie.
Roberts is entirely willing to adopt the hardcore Republican agenda; he’s just unwilling to adopt harebrained conservative legal theories to get there. His decision in June Medical bears that out. At issue in the case was a “Targeted Regulation of Abortion Providers” (TRAP) law in Louisiana. The law said that abortion providers needed to have admitting privileges at nearby hospitals. TRAP laws are designed to go after a woman’s right to choose by going after the availability of abortion services. What good is a right to an abortion if nobody has the right to provide one?
The problem with the Louisiana law is that the Supreme Court struck down a nearly identical law in Texas in 2016. That case was called Whole Woman’s Health v. Hellerstedt. I cannot emphasize enough that coming to the Supreme Court with the same law the Supreme Court struck down four years earlier is ludicrous.
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In 2016, the Supreme Court overturned the Texas TRAP law by a vote of 5-3. There were only eight justices at the time, because Antonin Scalia had died but Mitch McConnell was still refusing to hold a hearing on the nomination of Merrick Garland, Barack Obama’s pick to fill the position. Roberts dissented from that 2016 opinion, but Kennedy joined Justice Stephen Breyer’s majority ruling.
The only difference between the Texas law that was struck down and the Louisiana law at issue in June Medical was that by 2020 Neil Gorsuch had replaced Scalia, and Brett Kavanaugh had replaced Kennedy. That’s it. The only reason this case was before the Supreme Court was that conservatives thought they had enough votes to ignore precedent.
They did not. Roberts still believes that the majority opinion in Whole Woman’s Health was wrong. But he was unwilling to ignore the precedent set by his own court just four years earlier simply because conservatives got Gorsuch and Kavanaugh on the court. That’s not how the court is supposed to work. That’s not how law is supposed to work. We’re not supposed to live in a world where laws are constitutional or not depending on how effective Mitch McConnell is at blocking or confirming Supreme Court appointments.
Roberts was willing to defend the principle of Supreme Court precedent even though he personally thinks that precedent is wrong. But don’t count on his commitment to precedent in the future. In his concurring opinion, Roberts mentions that he might have been willing to straight-up overturn Whole Woman’s Health. In fact, Roberts even suggested that he’d be willing to look at the constitutionality of Planned Parenthood v. Casey, the 1992 case which defines the limits on a woman’s right to choose. That’s Roberts-speak for inviting a frontal challenge to Roe v. Wade. His decision in June Medical is not a victory for abortion rights but a warning.
We’re just lucky that conservatives were not asking Roberts to directly overturn abortion. Instead, conservatives argued the facially ridiculous position that the Louisiana TRAP law was somehow legally different from the Texas TRAP law. That legal fiction was a bridge too far for Roberts. As he showed in the Census case last year, Roberts is willing to look the other way on a lot of conservative claptrap. But don’t pee in his ear and tell him it’s raining. Roberts simply ruled that the same law in 2020 has to meet the same fate its twin did in 2016.
June Medical does not show that Roberts is a secret defender of women’s rights—it shows that the other four conservatives on the court are ideologically dedicated to ending abortion by any means necessary. When Kavanaugh said that he respected Supreme Court precedent, he was lying. Senator Susan Collins defended her vote for Kavanaugh by saying, “He believes that precedent ‘is not just a judicial policy, it is constitutionally dictated to pay attention and pay heed to rules of precedent.’” She was also lying—or, more charitably, she lacks the discretion needed to vote in the US Senate or determine the difference between bleach and medicine. All Roberts did was show a modicum of patience.
Unlike his conservative colleagues, Roberts, who is only 65 years old, understands that he will wield power for another decade or more. It’s that long view that explains his other major opinion from Monday, in Seila Law v. Consumer Financial Protection Bureau.
In that case, Roberts wrote a majority opinion ruling that the president could fire the head of the Consumer Financial Protection Bureau whenever the president wants to. The CFPB was set up to have independence from the whims of the executive branch, and that included making the director of the bureau essentially unable to be fired, except for cause. That set-up is exactly what I suggested we should do with the Department of Justice. Roberts ruled that such an arrangement was an unconstitutional violation of the separation of powers, and since he’s the chief justice of the Supreme Court and I am just some guy, I guess my suggestion is unconstitutional now.
But conservatives wanted Roberts to go further. They wanted him to rule that the entire CFPB was unconstitutional, not merely the law protecting its director from the president.
Roberts did not, because he understands that he doesn’t have to do that to accomplish the Republican agenda. His ruling allows Republican presidents, including the current one, to gut the CFPB from the inside by simply appointing a director who doesn’t care about the institution. It’s the game Republicans have played, effectively, with all the executive agencies: from the DOJ to the EPA, Republicans have long undermined the power of the government by installing directors who don’t believe in the agencies they run. You don’t have to take the constitutionally radical step of nullifying an entire agency when you can simply make sure that the entire executive branch serves at the pleasure of the president.
Again, Roberts rules like a man who plans to be here when Donald Trump is off somewhere hawking “America Used to Be Great” hats at the “Donald J. Trump MOST Presidential Library and Bigly Golf Course.” His rulings do not reflect a moderation of his philosophy; they reflect an unwillingness to be caught up by the lawlessness of this moment.
John Roberts is not a failure of the conservative movement. He’s not a “squish” or a RINO. He’s a rock-ribbed Republican jurist who is doing the long and patient work of defending corporate America and the white male patriarchy.
He’s just not a raging fanatic. Conservatives should stop asking him to adopt outlandish positions. They’d win more if they showed up to the Supreme Court without the clown makeup.
