John Roberts has lost control of the Supreme Court
S E E D E D C O N T E N T
The Supreme Court's dramatic 5-4 action leaving a Texas abortion ban in place at midnight Wednesday establishes that the Roberts Court no longer is Roberts' Court.
Chief Justice John Roberts dissented with three liberal justices in what could be regarded as the least considered but most consequential case in years.
Since Justice Amy Coney Barrett joined the court last October and he lost his position at the ideological center of the bench, Roberts has been on the dissenting side in a handful of close cases. But the Texas abortion controversy arguably marked his most significant loss to date.
The court's order, made public to news organizations at 11:58 p.m. ET, leaves in place a law that Roberts, himself a conservative who has consistently opposed abortion rights, described as "unprecedented." Texas prohibits abortions after six weeks and, equally significant for judicial review, appears to insulate state officials from lawsuits over its unconstitutionality. Since the 1973 Roe v. Wade decision, states have been prevented from banning abortion before a fetus becomes viable -- that is, can live outside the woman -- at roughly 22-24 weeks.
Nominated in 2005 by former President George W. Bush, Roberts has warned over the years about the importance of public confidence in the court and has tried to keep the bench from moving too quickly against abortion.
Roberts has continued to express a version of the mantra he offered during his confirmation hearings 16 years ago: that the justices should avoid a "jolt" to American's legal system.
Wednesday night's order, issued with barely three days of consideration, represented nothing short of a jolt and an assault on a woman's constitutional right to end a pregnancy in its early months.
The order leaves in place an abortion ban that is patently unconstitutional under past rulings and that was written to elude judicial review. Texas "essentially delegated enforcement ... to the populace at large," Roberts wrote in his dissent, because it lets private citizens bring cases against anyone who assists a pregnant woman seeking an abortion.
Until recently, the chief justice has generally kept a tight rein on the court's direction. The Texas controversy might portend a new dominance by the justices on the far right.
Anticipation for the direction of the reconstituted Roberts Court, including on reproductive rights, was already building before the Texas conflict emerged on the national scene. Justices on the far right had been pushing for a reconsideration of abortion-rights rulings, and earlier this year the court announced it would soon review a Mississippi abortion ban tied to 15 weeks of pregnancy. That case is likely to be heard in oral arguments late this year and resolved by June 2022.
Roberts' views and his ability to produce any kind of consensus ruling will be tested in that case, as well as in other 2021-22 session cases on subject that traditionally split the court, such as gun control and public funding of religious schools.
No longer the 5th vote on abortion
In the Texas dispute, the court's three liberals -- Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan -- also dissented. Those three justices have consistently affirmed abortion rights, as first declared in the 1973 Roe v. Wade decision and reinforced through years of precedent.
Roberts, on the other hand, was long positioned on the opposite side of reproductive-rights battles. He began his Washington legal career in the Reagan administration and helped promote the anti-abortion, right-wing social agenda.
Last year, when the justices heard a Louisiana abortion dispute, Roberts for the first time voted to strike down an abortion regulation. He provided the crucial fifth vote, then with four liberals (including Ruth Bader Ginsburg), to invalidate a tough Louisiana credentialing law for physicians who perform abortions.
The Louisiana law was similar to a measure the Supreme Court struck down in Texas four years earlier. Roberts dissented in that 2016 case but felt bound by the court's precedent in the 2020 controversy.
This week, Roberts no longer held the pivotal fifth vote. The new conservative majority consists of Barrett and Justices Neil Gorsuch and Brett Kavanaugh (Trump's first two appointees) and Justices Clarence Thomas and Samuel Alito.
And Roberts failed to prevail on one of the nation's most wrenching controversies. Abortion rights provoke a mix of religious, cultural and economic interests, the fervor of those who believe life begins at conception and the passion of advocates for women's personal autonomy and choice.
Abortion is perennially Topic A in presidential campaigns and congressional races, and it has long been a flashpoint of confirmation battles for judicial nominees.
In this week's Texas case, Roberts argued that it was best to block the law and preserve the status quo, while courts weighed whether the Texas legislature acted properly in shielding public officials from responsibility for the law, essentially leaving it in the hands of private citizens. He said the difficult arguments deserved full briefing and oral arguments.
But the smart, tactical, usually winning chief justice failed to persuade even one member the far right to join him in those arguments.
The conservative majority said the health clinics challenging the law had failed to sufficiently show they would be harmed by the new law taking effect.
"In reaching this conclusion," the majority wrote, "we stress that we do not purport to resolve definitely any jurisdictional or substantive claim in the applicants' lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas's law."
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We see in this vote the result of McConnell forcing Amy Coney Barrett onto the court mere days before last years election. Barrett was the deciding vote in the 5-4 decision.
Do you think the five right wingers on the Court care that this law would have been previously "patently unconstitutional?" Me neither.
Texas cannot 'delegate' enforcement of a statute that it has no constitutional authority to enforce itself.
The DOJ filing says it so much better:
S.B. 8 is toast...
Democrats don't like a SC ruling, and suddenly it is the end of existence.
Funny how they never bitch when Roberts sides with them and they win; even though the ruling was un-Constitutional. Take DACA for example that the SC turned an Obama EO/EA into law. Democrats and the left rejoiced at the time. Then came the ruling that Trump's stay in Mexico EO/EA had to be put back in place; and all asylum seekers (which means pretty much every illegal immigrant) would have to again stay in Mexico until their assigned court date. The left lost it; when the courts were merely following the precedent that was already sent.
Of course Biden will ignore it, and try to write another EO/EA to work around it using DHS. Just like he did with the renter moratorium. Laws in this country only apply on one side. The right must follow them; and the left can pick and choose which ones to obey and enforce.
Cry us a river; and no, you cannot pack the Supreme Court with a bunch of far left nut job judges.
Do you think the five right wingers on the Court care that this law would have been previously "patently unconstitutional?" Me neither.
Outlawing abortion will never again be accepted by the majority of Americans. If it does happen in any widespread way you will see street protests and political activism like you have never seen before. It could ruin the Republican Party permanently. Is that what you want?
How old are you John? Have you not seen enough change in your life to realize any guarantees about Americans will or won't do in future decades is ridiculous?
Well, I guess if we go back in time to when women had conditional rights and needed their husband or boyfriends permission to do things, you could have a point.
I just dont see that as the path a modern society would ever take, Handmaids Tale or no.
Banning abortion is also a highly religious impulse with many of the anti-abortion advocates. But religion is fading as a majority proposition.
Why not just leave the "compromise" position on abortion stand indefinitely? Abortion allowed up to the start of the third trimester.
I dont like abortion myself and I do respect religions desire to oppose it, but we cant tell people that they are forced to have a baby.
I saw the Texas legislator Angela Paxton on a television interview today. She was point blank asked how she could require victims of rape or incest to give birth to a child under those circumstances. She very blank facedly and cold heartedly answered that she protects human life. The interviewer said to her that your law has no provision for an exception for rape or incest and Paxton just said "I protect human life". This is fanaticism.
Abortion is not being 'banned', just having some common sense restrictions placed upon this contrived 'right'
The restrictions of the Texas law are NOT common sense.
Would that qualify as an insurrection, just curious
I thought thread dealt with how the court was veering away from Robert's guidance - not ANOTHER abortion thread.
Need to change your headline to point to your planned discussion on abortion - not SCOTUS's directions in their decisions.
Perhaps if you read the seed you would have understood the context of the headline.
BTW, John follows the CoC for posting seeds so his headline MUST coincide with the linked article.
Read the seed/thread - lots and lots of abortion talk but what of the other cases/decisions?? Didn't discuss the divisions of any other caseload other than abortion.
The title? John Roberts Has Lost Control Of The Supreme Court - please show us just where in the title does it add "on abortion cases".
What about them 1st?
That 'division' is quite poignant at the moment.
As you well know 1st, the RULES here on NT mandate that seeders quote the EXACT headline used by the seeded article. So WHY are you whining about John following the rules?
Received exactly what I expected as a reply - you still don't talk/discuss.
You win - guess there's no reason for anyone to have their own opinion or WHINING on any topic, regardless, eh?
Looks like NT is gonna hafta shut down because of all the WHINING comments from all the members who are just voicing their opinions. Certainly don't wanna violate any "RULES", right?
I did discuss the RULES with you 1st, YOU fail to even acknowledge them.
In fact, I asked you questions, which you ignored.
So spare me your faux outrage.
1st, the article was seeded with "Fetch" and the seeder doesnt decide the wording of the headline when Fetch is used.
Although abortion is a main topic of the article, I saw it as also making the point that Roberts is losing influence on the other conservatives, who dont really need him to make a majority.
John - I concur that Roberts is losing his influence, but it has been developing over the past couple of years - Kegan and Sotomayer and Ginsburg, in many cases, had dissenting opinions on the cases which showed, to me, that his "influence" was waning. Adding Gorsuch to that trio, shifted the balance which Roberts wasn't ready relinquish.
I guess I "shouldn't" be surprised that a so-called "legal scholar" (granted she's been on the job for 25 years) doesn't always provide diction nor balance to their writings. A title/Subject, the way I was taught, always - ALWAYS - matches the discussion to keep the reader from calling it quits in the middle of or after the 1st paragraph.
No - YOU discussed the RULES - was not any part of my comments - you fail on that one.
You didn't ask a question on a subject - you asked a gran mal question that pretty much covers the globe. But, that is pretty much your M.O.
Bringing up a valid point is not a case of WHINING - continual reminders of how poorly the/a commenter doesn't do something/ask something/answer a nebulous, nefarious misdirecting whirlwind from someone/a group is WHINING.
So when you stated:
You actually mean to insist that I must talk/discuss within YOUR parameters.
Umm, NO. That's not how this shit works 1st.
Since my question is directly in context with yours, you've charactorized critcises your own question 1st.
As I have pointed, you have NO valid point since John is following the RULES. Instead of acknowledging that FACT, you persist in demanding that John and/or I defend the headline of the seed.
So you'd charactorize:
As WHINING too.
Shifting the balance of a MINORITY from 3 to 4 relinquishes nothing. In FACT, it empowered Roberts by allowing him to become the swing vote.
What's the surprise? Surely it was obvious from the beginning that this was coming.
The star of Texas now flies for the Supreme Star Chamber of the USA. Kafka would mourn.
"Off with their heads" screamed the majority of the court.
It was a 5-4 decision, just like Roe v Wade was.
Amazing that in this modern day and age so many Justices believe women should not have rights over their own bodies. It's not primitive, it's middle ages - tantamount to drowning witches. Of course I've been waiting for Amy Barrett to show her true colours - it was inevitable.
Talk about women having control over their own bodies...
That was in the past, not the present. China admitted it was a mistake, an attempt to control a huge and fast-growing population that could not be fed, and it only applied to urban families, not agrigcultural ones. But China grew up and realized its mistake and the consequences of that limitiation so three children are now permitted, but in modern times couples are not rushing to have a lot of children because of the expenses like education, etc, but that's their choice. The new Texas abortion law is not growing up, it's growing backwards. Forcing women to carry to term and give birth to children of rapists, incest, and producing monster children that cause broken hearts? Wrong direction, Greg, wrong direction.
Really Vic? Care to share a link to the briefs, and audio of the oral arguments for the Texas case?
I'll post them for Roe if you'd like.
Oh and BTFW, Roe v Wade was a 7-2 decision.
It's always the radicals that frock things up. I have not respected the supreme court for quite some time. No one should be surprised how religiously coo coo it has become.