Chief Justice John Roberts signed on to the majority’s ruling in Dobbs v. Jackson, of course, but he didn’t necessarily love doing it. He’d have preferred a more restrained ruling, one that left Roe in place while also letting Mississippi restrict abortions after 15 weeks. He would’ve preferred — in his own words — a little “judicial restraint”:
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. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us
This is, in fact, an ongoing problem for Roberts, according to the NYT analysis of the just-finished term:
"There were, however, some divisions on the right. “The conservative wing of the court is not a monolith,” said Roman Martinez, a Supreme Court specialist with Latham & Watkins, “and there are real and significant differences between how far to push the law in a more originalist direction, and how fast.”
The most significant example of this was Chief Justice Roberts’s opinion in the abortion case, which would have upheld the restrictive Mississippi law at issue but would have stopped short of overruling Roe in so many words. The chief justice’s failure to attract a single vote for that approach was telling, Professor Epstein said.
“The court has morphed into the divided, partisan, maximalist, activist court that Roberts has pushed back against for nearly two decades,” she said. “At least for now he’s lost the fight.”"
There is a way Roberts can restore a measure of modesty and restraint to the court. He can retire — right now — and let President Biden and the Democratic Senate choose his successor.
The reasoning here is simple: A 5-4 majority — which conservatives would have — would be a lot more precarious than the current 6-3 majority. Republicans would still get their way, generally, on some of the big issues that come before the court. Hell, they probably would’ve still overturned Roe. But maybe not. When you’re one vote away from being in the minority, there’s less of a tendency to push for maximalist outcomes. The current conservative majority doesn’t have to care: They’ve got a vote to spare.
Would it work? Well, consider this from that NYT article:
"Analyzing emergency applications is tricky, but one trend is clear: In significant cases referred to the full court, three of its members — Justices Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — voted in a conservative direction at a very high rate. “The suggestion here is one of extreme activism rushing to push through conservative interests and causes,” Professor Epstein and Pablo Aabir Das, a recent graduate of the University of Southern California’s law school, wrote in an analysis of the data."
Emphasis added. That means that — aside from Roberts — Amy Coney Barrett and Brett Kavanaugh can sometimes be peeled away from the majority. Probably not that often. But even a little more often would be an improvement.
So Roberts should resign.
I know this won’t happen. Roberts is no liberal — while he might favor judicial restraint, it’s unlikely he favors restraining the court by absenting himself from it. The rage from the right would be unending, and the opportunity for “strange new respect” from the left would probably be pretty minimal: The damage has, after all, already been done.
Odds and ends
"One in 10 people of reproductive age in America lives in Texas." That was an eye-popping number.
Joe Turkel, an actor in one of my favorite movies, Paths of Glory, has died at age 92.
The Hidden Life of a Christian-College Professor This story reminds me so much of my alma mater, which had — and I believe still does — a stricter set of rules regarding the ability of LGBTQ people to live openly than the college described in this story. While I don’t begrudge private religious schools imposing rules that are consistent with their theology — free association and all that — it’s also the case that damage has been done: One person of my acquaintaince told me decades after the fact that he was required to undergo conversion therapy as a condition of his continued admission to the school. Long story short: I love my friends from that time in my life. But I no longer support my alma mater in its mission. That feels like a loss, but a necessary one.