Supreme Court fallout casts harsh light on Roberts leadership

Chief Justice John Roberts’s stewardship of the Supreme Court was placed in a harsh light this week after a leaked draft opinion showed the court’s conservative justices are poised to overturn Roe v. Wade.

Among critics, there was a sense that the court had reached the low point of Roberts’s 16 years as chief. 

The three Trump-appointed justices were accused of lying to the American public during their confirmation hearings by indicating they viewed Roe as settled law, only to endorse striking down the landmark 1973 decision soon after joining the bench.  

The leak itself, one of the most stunning breaches of secrecy in the court’s history, also comes just weeks after an ethics row concerning Justice Clarence Thomas and his wife over her involvement in efforts to overturn the 2020 election.

These dynamics are now playing out against the backdrop of a court whose standing with the public has steadily sunk to a historic low, and as new polling suggests the court is moving even further out of step with a majority of the country. 

As Americans reckoned this week with the likelihood that the court in the coming months would remove the constitutional right to abortion, the leaked draft opinion seemed to provide the strongest evidence yet that on many issues, Roberts no longer wields the moderating influence he once had over the court’s more hard-line conservatives.

“Roberts is unquestionably conservative, but he favors incremental change over radical change and, at times, joins with the liberal justices, including in high-profile cases,” said Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. “But there are five justices significantly more conservative than Roberts and who clearly want more radical change.”

“This is evident in the abortion case, it was apparent with regard to the Texas abortion law, and we will see it in many other areas as well,” he added. 

The leaked draft opinion would overturn Roe and eliminate federal protections that for nearly five decades have safeguarded the right to terminate an unwanted pregnancy. That outcome is reportedly backed by a majority comprising Justice Samuel Alito, the opinion’s author, Thomas and former President Trump’s three appointees: Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

At issue is a Mississippi law that bans virtually all abortions after 15 weeks of pregnancy, a direct challenge to Roe’s guarantee of abortion access prior to fetal viability, around 23 weeks.

The court this week confirmed the authenticity of the leaked document published Monday evening by Politico, but cautioned that justices’ votes and the opinion itself are subject to change before a final decision is published, which is expected by late June.

Roberts, while willing to uphold the Mississippi abortion ban, had sought to steer a middle course between the dissenting liberals and the five justices to his right, according to reporting by CNN and The Wall Street Journal. The failure of his more modest approach to garner a majority suggests Roberts was unable to persuade other conservatives to join his side, with his most likely targets having been Kavanaugh and Barrett. 

“The era of ‘the Roberts court’ ended the moment Amy Coney Barrett was seated on the court. That appointment took Chief Justice Roberts out of the political center of the court,” said Dan Kobil, a professor at Capital University Law School. “Roberts’s incrementalism will become the judicial equivalent of flagpole sitting from one hundred years ago: a fad that was briefly popular, but which we can no longer understand in a future where raw political power will determine the outcomes of Supreme Court decisions.”

Other court watchers suggested the bench’s shifting composition presented Roberts with more mixed fortunes.

Steve Schwinn, a law professor at the University of Illinois at Chicago, agreed that Roberts has lost some control in the most divisive cases, such as abortion. But he suggested the politically savvy chief may also benefit in other ways by being outflanked to his right.

Roberts has often hewed to an incremental approach due to concerns over the court’s institutional integrity, not because he necessarily disagrees with the outcome of a case. But on some issues, such as voting rights, Roberts has ditched a plodding approach in favor of a maximalist one, as in his 5-4 decision in Shelby County v. Holder that gutted a key provision of the Voting Rights Act.

“We know that Roberts does not believe that there’s a fundamental right to abortion. All else equal, he might even sign-on to Alito’s draft,” Schwinn said. “He gets the ultimate legal opinion that he wants, and he also gets to position himself above the fray and as the protector of the institutional integrity of the Court. And when he wants to go for a full-throttle conservative ruling, he can, and does.”

In decisions where Roberts is not in the majority, it would fall to the senior justice in the majority to assign who writes the opinion. That role would often be fulfilled by Thomas, 73, who presumably tapped Alito to write the opinion in the Mississippi abortion dispute.

The ultraconservative Thomas has created headaches of a different sort for Roberts in recent months, due to revelations related to the political activities of his wife, Virginia “Ginni” Thomas. 

In the weeks following the 2020 election, Ginni Thomas reportedly exchanged dozens of text messages with then-White House chief of staff Mark Meadows that appeared to show her strategizing over how to bypass the will of American voters to install Trump for a second White House term despite his loss to President Biden, an outcome she described as an “obvious fraud” and “the greatest heist of our history.”

During roughly the same post-election time frame, Clarence Thomas declined to recuse himself from numerous pro-Trump legal challenges that contested the 2020 results. And earlier this year, he cast the lone dissenting vote in a Supreme Court ruling that cleared the way for the House committee probing the Jan. 6 insurrection to obtain Trump White House records.

The news prompted Democrats to call on Thomas to recuse from any future election-related disputes that come before the court. In his three decades on the bench, however, Thomas has never stepped aside from a case due to a real or perceived conflict of interest resulting from his wife’s political activities.

His more fervent detractors demanded resignation or impeachment. That ethical scrutiny could soon reignite as litigation related to the House panel probing Jan. 6 makes its way through the appeals process, perhaps eventually reaching the justices.

Recent surveys suggest the rash of negative headlines has done serious damage to the Supreme Court’s standing.

In a poll released last month, a majority of Americans, 52 percent, said Thomas should recuse from cases related to the 2020 presidential election.

Other polling this week suggests that the court’s draft opinion striking down Roe, if it became law, would be out of step with the American public. According to a Washington Post-ABC News poll conducted in late April, a majority says the Supreme Court should uphold the landmark 1973 decision.

In addition to the fallout over Roe’s likely demise, a separate set of questions arose this week concerning the leak itself — prompting a rare public statement from Roberts.

On Tuesday, Roberts directed the marshal of the Supreme Court to launch an investigation into the origins of the leak, which he called “a singular and egregious breach” of trust. At the same time, though, he sought to downplay its long-term repercussions on the court’s operations.

“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 said in a statement. “The work of the Court will not be affected in any way.”

Whether the leak does long-term harm to the court’s reputation, many experts agreed it will damage relationships inside the court.

“This has to create an environment of distrust among the justices and between the justices and the law clerks at least until the court figures out who is the source,” said Carter Phillips, a partner at Sidley Austin who has argued dozens of cases before the Supreme Court. “That is not a helpful situation, particularly as the court approaches the final stages of the term.”