As the nine justices prepare for their private, closed-door conference scheduled for this week, they face one of the greatest crises in modern Supreme Court history, with an internal investigation into the leaks underway, a restless nation wondering if the constitutional right to abortion is about to be overturned, and some judges are facing angry protests in their homes.
“This is the most serious assault on the court, perhaps from within, that the Supreme Court has ever seen,” said a person close to the court’s conservatives, who spoke from anonymously due to the sensitive nature of the Court’s deliberations. “To say they are heavily, heavily burdened by this is an understatement.”
A second person close to the court said liberal justices “are as shocked as anyone” by the revelation. “There are concerns for the integrity of the institution,” the person said. “Views are uniform.”
At the center of the storm is Chief Justice John Roberts, whose power over court decisions and operations has seemed to diminish as the court has moved to the right and has become more polarized.
In the Mississippi abortion case currently before the court, Dobbs v. Jackson Women’s Health Organizationit’s unclear whether Roberts will join the dissenting liberal justices, form his own solo opinion in the case, or perhaps join a watered-down version of Alito’s draft.
Roberts could still try to pressure one of the five Republican-appointed justices to drop his support for Alito and sign a more centrist opinion that doesn’t formally reverse deer, but instead maintains Mississippi’s 15-week limit for performing most abortions. Such a move would strip Alito of a majority and could maintain some federal guarantee of abortion rights, though specific regulations that states could mandate abortion in such a scenario remain unclear.
With their traditional summer break looming in early July, the judges have only about seven weeks to make a potentially momentous decision on the abortion — a process complicated by POLITICO’s publication of Alito’s project and the flood of public criticism triggered by this surprise release.
Court Tories also abruptly became the focus of the protests, resulting in tense scenes outside their homes. And concerns about potential security threats prompted the Supreme Court to deploy a towering eight-foot-tall black fence along the perimeter of the court grounds last week.
“It’s bad,” said historian David Garrow. “Until Dobbs falls, it will continue and there is no indication that the steps on people’s houses are going to be closed.
The debate has also rocked the nation: clinics dedicated to providing abortion services have tightened their security measures while so-called crisis pregnancy centers seeking to dissuade people from seeking the procedure have come under attack.
Jen Psaki, the outgoing White House press secretary, said President Joe Biden believes “violence, threats and intimidation have no place in political discourse,” adding, “we allow certainly peaceful protests in various parts of the country None of this should violate the law, no one is suggesting it.
Meanwhile, judges face sensitive decisions on how to respond to the highly unusual breach of secrecy demonstrated by the unauthorized publication of the draft notice, which has raised suspicions inside and out. of the court. Roberts has promised an investigation, but longtime court watchers and other legal analysts say conducting such an investigation poses a host of tricky questions for judges about who should handle the investigation, what tactics to employ and how to handle disagreements between judges on these issues. .
Reaching consensus on these issues could be difficult under any circumstances, but can be particularly difficult for Roberts, who has encountered tension with conservatives both at court and in the broader political community in recent years.
While Roberts is a conservative and has repeatedly sided with his fellow Republican appointees on matters involving voting rights, campaign finance and affirmative action, he sometimes looked more like a swing justice. on other issues, particularly over the past decade.
However, in a series of politically charged cases, Roberts has sided with the court’s liberals to uphold the Affordable Care Act’s individual mandate, rejecting President Donald Trump’s repeal of protections for self -saying Dreamers and foiling the Trump administration’s plans to add a question. on citizenship in the 2020 census.
Of those decisions, Obamacare’s ruffled the most feathers because Roberts reportedly reversed his position days before the decision was announced, ultimately voting to find the law constitutional.
“There’s a price to pay for what he did. Everyone remembers that,” said a lawyer close to several conservative judges, who was granted anonymity due to the sensitive nature of the court’s arguments. court.
Many court observers are seeing such fallout in the court’s handling of the abortion case it is currently considering. Under normal court procedures, Roberts could have claimed the majority opinion had he joined five other GOP appointees to enforce Mississippi’s law banning abortion at 15 weeks.
However, the Majority Opinion Draft ended up being authored by Alito, and its strident text indicates that Roberts is unlikely to be on board.
This yawning rift on an issue at the forefront of the conservative legal movement for decades threatens to make him a less influential steward of the conduct, legitimacy and legacy of the judiciary, say many legal experts. Supreme Court.
“There are definitely signs that this isn’t really Roberts’ court,” said Thomas Keck, professor of constitutional law and politics at Syracuse University.
“There seems to be some bitterness among the other justices,” said Curt Levey, a conservative lawyer and veteran of several Supreme Court confirmation battles. “There was probably a time when Roberts could have convinced one of the other conservative judges [in the pending abortion case.] He could well have achieved this a few years ago… Perhaps it is the ultimate reward that in the most controversial of all cases and the greatest threat to the legitimacy of the court that he no longer has the power of persuasion.
Others say those who expect Roberts to “control” the court misunderstand the job and that a chief justice is little more than an umpire.
“He’s not the Army Chief of Staff,” said Garrow, whose writings on the history of deer are cited in Alito’s draft opinion. “He’s one of the nine and you’re more of an equal than a superior…. The power of the Chief Justice is a power of persuasion. Period.”
“Anyone who says Roberts lost control of the court just doesn’t know the history of the Supreme Court because there have been a lot of chief justices who didn’t control the court,” Garrow added.
To some extent, Roberts is also now a victim of the expectations he set for himself by publicly and repeatedly embracing the goal of reaching consensus on the tribunal. Speaking at a legal conference in Atlanta last week after POLITICO disclosed the draft abortion advisory, he hinted at the dangers of the approach and suggested he had lowered his own horizons.
“I learned on the court that unanimity means 7 to 2,” Roberts joked, according to The Washington Post.
Yet some of the challenges Roberts now faces in his ability to lead and influence the court are hard to describe as the product of failure on his part.
Many factors have combined to push the court sharply to the right in recent years. The unexpected death of Justice Antonin Scalia in 2016, the decision by Senate Republicans not to allow former President Barack Obama to fill Scalia’s seat, and Trump’s upset victory in the presidential race that year all pushed the court to the right. Judge Ruth Bader Ginsburg’s decision to stay on the court despite her myriad health issues, and Ginsburg’s death just weeks before the 2020 presidential election created another opening for Trump to appoint a conservative — Amy Coney Barrett.
“We are where we are because Ruth Bader Ginsburg insisted on staying,” Garrow said.
Trump’s ability to fill Ginsburg’s seat with a conservative has moved the court from an ideological 5-4 split to a 6-3 split that undermines the ability of any individual judge – including Roberts – to change the outcome in highly polarized cases.
“I think it’s more of a math question than anything else,” said historian and American University professor Stephen Wermiel. “He was the swing vote because he was the swing vote. He no longer holds that position.
But other court watchers say the situation that diminishes Roberts’ power is not entirely the product of outside forces.
“It’s partly for nothing that he could have done anything,” said Levey, who works for the Freedomworks Foundation and the Committee for Justice. “It’s partly because of who he’s alienated on the pitch.”