Roberts Could Persuade Conservative SCOTUS Justice Not to Overturn Roe V. Wade8 min read
- Court watchers believe Chief Justice John Roberts is against completely reversing Roe v. Wade.
- Roberts could persuade another conservative justice to join his narrow position on abortion rights.
- If he did, that position would become the Supreme Court’s final ruling.
Chief Justice John Roberts has infuriated conservatives before.
He’s voted to uphold Obamacare, protect LGBTQ employees from discrimination, strike down a Louisiana abortion restriction, and safeguard the Deferred Action for Childhood Arrivals policy for children unauthorized to live in the US, some of the many actions that have earned him a reputation for being an unreliable ally to the conservative legal movement.
Now anti-abortion advocates are eagerly waiting for the Supreme Court’s 6-3 majority to deliver them a monumental victory they’ve been fervently working toward for decades: overturning Roe v. Wade.
But Roberts could throw a wrench in their plans.
Court watchers widely believe that the chief justice, who has long sought to defend the Supreme Court from perceptions of partisanship, is opposed to a complete reversal of Roe, the landmark ruling that legalized abortion nationwide nearly 50 years ago.
His position puts him at odds with his five fellow conservatives on the bench, who, according to a leaked authentic draft opinion, appear ready to toss out the precedent.
“Justice Roberts is an institutionalist, and he’s unlikely to want to overturn Roe v. Wade all at once,” I. Glenn Cohen, a professor at Harvard Law School, told Insider, adding that the chief justice was probably in favor of “rolling it back slowly.”
At the heart of the consequential case before the court lies a Mississippi law that seeks to ban abortion after 15 weeks of pregnancy, which contradicts the standard set in Roe permitting the procedure until viability, about 24 weeks. Mississippi has asked the nation’s highest court to leave abortion decision-making up to the states and overrule Roe, along with a subsequent 1992 decision, Planned Parenthood v. Casey, which determined that states could not impose an “undue burden” on abortion.
Roberts seems to be carving out a narrow path, one that perhaps allows Mississippi’s law to stand but preserves Roe’s core tenet that women have the constitutional right to get an abortion, multiple news outlets reported after the leak. People familiar with the court’s deliberations disclosed Roberts’ thinking to The Washington Post and CNN.
“The potential bombshell on the other side is that, if it’s true, Roberts is pushing to try to get a compromise on 15 weeks,” Mark Kende, a professor at Drake University Law School, told Insider.
Roberts’ success would depend on his ability to win over at least one other justice, a move that would dismantle the five votes required for a majority and make his opinion the final decision of the court.
That prospect is a longshot, as none of the five conservative justices appear to have changed their mind, sources told Politico in a report published Wednesday. Though their votes could possibly change, as there are still several weeks between now and when the court is expected to hand down its decision on the case, Dobbs v. Jackson Women’s Health Organization, by late June or early July.
“He only has the power of persuasion. He doesn’t have any authority over any other justice that would make that justice reach a decision that the justice doesn’t want to reach. He only has the power of persuasion,” Keith Werhan, a professor at Tulane Law School, said.
Roberts appears split from fellow conservatives on the bench
Signs that Roberts may split from the court’s conservative wing came during oral arguments for the case heard on December 1. The chief justice set himself apart through his line of questioning. He repeatedly offered a narrow view of the case, fixated on Mississippi’s 15-week law rather than the state’s demands to overturn Roe.
“What we have before us though is a 15-week standard,” Roberts said during oral arguments.
“The thing that is at issue before us today is 15 weeks,” he said again later.
At another point, Roberts moved away from a discussion on total abortion bans and asked about altering Roe’s viability cutoff.
“I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability,” he said.
The rest of the conservatives focused elsewhere. Justices Samuel Alito and Brett Kavanaugh raised concerns about the “interests” of fetal life. Justice Amy Coney Barrett speculated about adoption. Justice Neil Gorsuch expressed doubts about Casey’s “undue burden” test. Justice Clarence Thomas questioned how abortion rights were protected under the Constitution.
Then came the leaked draft opinion – a blistering rejection of Roe written by Alito – that showed additional signs that Roberts was alone in his thinking.
Following oral arguments, the justices met in a private conference to cast an initial vote on the case. Alito, Thomas, Gorsuch, Kavanaugh, and Barrett voted in the majority to side with Mississippi and overrule Roe, according to Politico. Roberts’ vote was unclear.
Supreme Court protocol goes as follows: If the chief justice votes in the majority, he assigns the opinion. If he doesn’t, the most senior member in the majority, which would be Thomas in this scenario, is tasked with the responsibility. Thomas, the longest-serving member on the court, has long been a vocal opponent of Roe. It’s unclear why he did not write the opinion himself.
“The fact that Justice Alito got the opinion suggests that the chief justice was not the one assigning it because he knows that Alito is like a bottle of rage, and he wouldn’t have selected him for this particular opinion,” Sherry Colb, a professor at Cornell Law School, told Insider.
Shaken by the leak, Roberts appeared to signal that he’d not given up on his stance.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” he said in a statement hours after Politico published the draft opinion.
In a press release, the Supreme Court said that Alito’s draft opinion, circulated among the justices on February 10, “does not represent a decision by the Court or the final position of any member on the issues in the case,” leaving open the possibility that the way the justices vote could change.
“Chief Justice Roberts has tried to be a justice who looks after the institutional integrity of the court, and this has to be kind of his worst nightmare,” Kende, the Drake University Law School professor, told Insider.
“I think he’s going to have some leverage now,” Kende added. “Maybe there is the possibility of a switch and the court trying to say, ‘We’re not going to get rid of this now. We’re going to compromise.'”
The chief justice’s lasting influence
Over his 16 years on the bench, Roberts has become an advocate for incremental decisions rather than sweeping overhauls of the law. An appointee of President George W. Bush, Roberts has a strong conservative record, joining his bloc in plenty of decisions. But he also has an independent streak and has sided with the court’s liberals in some high-profile, contentious cases.
When Barrett became a justice in 2020 and cemented an expanded conservative majority, Roberts was perceived to have diminishing influence. He no longer held the swing vote in an ideologically divided court. But despite the new makeup of the court, Roberts still maneuvered to bring justices on his side in several decisions.
Last year, Kavanaugh and Barrett joined Roberts in denying a Republican-backed challenge to the Affordable Care Act. The court’s two newest members also cast key votes with Roberts in another decision that narrowly supported religious groups, a limited stance that was met with frustration from the court’s more conservative members.
Because of their willingness to follow the chief justice and observe judicial restraint, Kavanaugh and Barrett are widely presumed to be Roberts’ targets to negotiate with in this abortion-rights case.
“There’s no reason to assume Chief Justice Roberts isn’t trying to persuade one member of the majority, at least, to go with him on this,” Werhan, the Tulane Law School professor, said.
Still, some court watchers think any pursuit by Roberts would be doomed. President Donald Trump notably pledged on the 2016 campaign trail that if elected, he would appoint Supreme Court justices who opposed Roe. His picks — Gorsuch, Kavanaugh, and Barrett — each came through conservative legal networks that pushed anti-abortion agendas.
“I don’t really see any of those justices jumping ship and deciding to enforce Roe,” Colb, the Cornell Law School professor, said. “They’ve been wanting to do this for a long time.”
Yet if Roberts manages to secure one vote, the result may become a splintered 4-2-3 ruling, with the court’s three liberals likely in dissent. That outcome would give Roberts the opportunity to write the opinion of the court.
“Ironically, he could write an opinion, which would have the least allegiance, but it nevertheless would state the position going forward,” Werhan said.
Despite plummeting public trust in the Supreme Court, Roberts has managed to remain broadly popular among Americans. A majority of Americans in a December poll by Gallup — 60% — said they approved of the way he’d handled his job. Just 40% of respondents said they supported the job the high court was doing, a record low since Gallup started its tracker 20 years ago.
Legal experts say the public’s declining faith in the court concerns Roberts. And a decision overturning Roe would likely deepen criticisms about the court’s legitimacy that he’s tried to fend off.
“The irony is that Chief Justice Roberts used to be a real sort of champion of overruling Roe,” Colb said. “And I think he’s become more moderate, in part, just because of how ugly the extremity of the court is and how it has made the court fall in esteem among the public.”
Roberts’ approach, if adopted by the court, is destined to anger conservatives who want to see Roe entirely gutted. At the same time, changing Roe’s viability mark would upset liberals, who have long fought to keep it intact.
“Casey did result in a significant cutback on abortion access,” Werhan said. “Upholding the Mississippi law in Dobbs would do likewise.”