by Clive Crook
It tells you a lot about the U.S. Supreme Court, and the state of the country, that only one of its nine justices appears to have given the possibility of compromise on abortion more than a moment’s thought.
Chief Justice John Roberts voted with the majority in Friday’s decision to allow Mississippi’s law prohibiting abortions after 15 weeks, setting aside the fetal viability standard of Roe v. Wade. But he explained in his concurrence that this could and should have been done without scrapping Roe completely, which the court chose to do.
The pragmatic, prudential case for doing as Roberts proposed is overwhelming. His argument also makes far better sense than both the majority opinion and the dissent in terms of its narrow legal reasoning. Yet he might as well have been talking to himself.
The tone of the post-ruling commentary was telling. Roberts’ position was viewed as almost pathetic. See the poor chief justice, desperately yet futilely trying to avoid controversy by splitting the difference. The majority dismisses his argument brusquely and almost contemptuously, saying it fails to provide “any principled basis for its approach.” The dissenting minority is so busy hyperventilating that it barely notices his intervention, treating it parenthetically on the second-to-last page of its opinion.
Hence the legal pundits’ prevailing sentiment: This is no longer the Roberts Court, if it ever was. You can only feel sorry for the guy.
As the consequences of Dobbs unravel, however, history’s verdict is likely to be different. Roberts may well be vindicated.
Roberts explains that Roe established that a woman has the right to terminate a pregnancy — the right to choose — but that this right is qualified: Given certain conditions, the state can override it to protect fetal life. (Roe’s most ardent supporters prefer to ignore this second part.) But the main criterion the decision proposed for any such overruling, says Roberts, was flawed. Viability is not the right test, because the woman’s right to choose can be effectively exercised well within the first 24 weeks of pregnancy. A 15-week limit — which most Americans would probably see as reasonable, and which is closer, by the way, to the legal standard prevailing in much of Europe — would not seriously infringe the right to choose. On that ground, says Roberts, the Mississippi law should stand. There was no need to erase the right altogether.
In addition, Roberts writes, respect for precedent and the principle of judicial restraint — necessary features of any stable legal order — argue that any reinterpretation of the Constitution should generally be as limited as possible. The court’s decision is “a serious jolt to the legal system,” he writes. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
The majority’s response to these arguments is both cursory and bizarre. First, the majority finds it “revealing” that neither of the parties represented in the case recommended it. Sorry, what exactly does this reveal? Do the parties to a legal dispute typically recommend compromise to the court, as opposed to advancing their own positions while conceding nothing? As Roberts points out, no rule confines the court to deciding the case solely on the grounds advanced by the parties.
The majority also says compromise would only prolong the turmoil created by Roe. If the court ducks the main issue — whether the Constitution does in fact recognize the right to choose — it will continue to be confronted by cases posing that question. By saying, once and for all, that the Constitution does not recognize that right, that it’s a matter for the states to decide, the court can draw a line under the controversy and move on.
Are they serious? As states grapple with the implications of this ruling, there will be a surge of litigation. Many of these disputes will find their way to the highest court. And it’s safe to expect an increase in political turmoil. In the short term, this will be driven by the rage unleashed among the most zealous pro-choice advocates; later, by the unfolding damage inflicted by harsh restrictive laws in the states that adopt them, consequences that the majority opinion all but ignores.
The idea that this radical judicial act settles anything is delusional.
It’s hard to avoid the conclusion that the court, rather than leaning against the gathering breakdown of consensual government in the U.S., is now fully reflecting and even aggravating it. The court’s majority textualists want nothing to do with a “living constitution” — one that adapts to changing values. In their view, the law is what it says, and the consequences are not their concern.
The dissenters, it’s important to note, are no more interested in a middle way. For them, preferred outcomes are all that matter, so they’ll do their best to make the law say what all good progressives think it should.
The Roberts concurrence sketches a view of the court the country desperately needs — one that strikes balances, respects the letter of the law, works for judicial stability, advances justice and provides a bulwark against political excess. Unfortunately, almost nobody on the court, or anywhere else, is interested.
