CHIEF John Roberts? Not.

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POLITICO

The lonely chief: How John Roberts lost control of the court

The chief justice had zero support for his middle of the road effort on Roe v. Wade.
As the shock waves spread Friday from the Supreme Court’s momentous decision striking down Roe v. Wade, one notable casualty of the ruling became evident: Chief Justice John Roberts.
After nearly seven months of deliberations, Roberts found precisely zero takers among his fellow justices for his incrementalist approach that would have avoided overruling Roe for now, but allowed Mississippi to impose a near ban on abortions after 15 weeks of pregnancy.
The court’s conservatives dismissed Roberts’ stance as unprincipled and impractical, while the liberal justices called it “wrong” without detailing their objections.
Ultimately, Roberts’ opinion amounted to an afterthought that had no impact on the outcome of the case.
And with the tumultuous Roe decision, the Roberts court legacy takes on a historic taint of polarization that the chief justice may not be able to unwind as he stares down the remaining years of his term overseeing a court that he clearly can’t control or cajole.

How Democratic campaigns are responding
Where abortion is now (or soon to be) illegal
Abortion statistics by state, visualized
Colleges aren't prepared for Roe's fall

“This was clearly a rough term, but here is the capstone piece of evidence of just how little this is still the Roberts court,” said University of Texas law professor Stephen Vladeck. “This is a court that is fighting with each other past the chief. The bitterness, the intensity, the hostility is a reflection of the chief’s powerlessness because he can’t control either block.”
“This stands as the most important decision of his tenure as chief justice and he’s not part of it,” American University professor and historian Stephen Wermiel said. “Roberts obviously tried hard to persuade the court I think to not go that far. … I presume he put all his cards on the table and, in the most important case of his tenure, he came up short.”
Roberts came to the court with sterling conservative credentials and was confirmed on a 78-22 vote in 2005. He was lauded by former President George W. Bush and had the support of the entire Republican establishment who saw the young chief as the vanguard of next generation of constitutional conservatives on the court.
Yet, Roberts on Friday found himself alone. He tried to avoid the very fallout that he believed the court could have avoided by stopping short of overturning Roe, and seems keenly aware of how Americans view the Supreme Court. The court continues to drop in its approval ratings with the public and it can’t seem to escape the perception that the institution’s decisions are being driven by politics, not principle.
The snub Roberts suffered Friday would be humbling for any chief justice given the way in which abortion-related decisions bring a white-hot spotlight to the court. But it’s just the latest in a series of blows Roberts has sustained in recent weeks that have fueled doubts about his ability to manage an increasingly fractious court.
Early last month, POLITICO shocked courtwatchers by publishing a draft of the majority opinion in the abortion case the court decided Friday. The unprecedented disclosure startled the justices, their law clerks and court staff. One day later, Roberts confirmed the authenticity of the draft, ordered an investigation and said the breach would have no impact on the court’s operations.
The following week, the longest-serving member of the court — Justice Clarence Thomas — called the leak “tremendously bad” and he contended it was fueled by a deterioration in relations at the court in recent years. Thomas didn’t mention Roberts by name, but expressed a clear preference for a period that ended around the time when the chief was confirmed in 2005.
“This is not the court of that era,” Thomas said at a conference of conservatives. “We may have been a dysfunctional family, but we were a family.”
The atmosphere at the court has also grown tense in recent weeks as Roberts has had to grapple with questions about the scope and tactics of the leak investigation and about security threats that emerged after the report that Roe was on the verge of being overturned. The court erected an eight-foot anti-riot fence around its historic building and further postponed plans to allow the public to return to its courtroom and public spaces.
Justices were given 24-hour security details as protests erupted outside some of their homes. And in the most chilling incident, earlier this month, a California man showed up outside Justice Brett Kavanaugh’s Maryland home allegedly intent on killing the justice. Police say the man was armed with a gun and a knife and he expressed anger about the expected abortion ruling and recent mass shootings.
Against that chaotic backdrop, Roberts had to weather Friday his conservative colleagues uniformly endorsing an opinion unapologetically picking apart his suggestion that the court stop short of overturning Roe v. Wade and “leave for another day” the most pointed questions about that decision. Indeed, the only substantive changes to Justice Samuel Alito’s original draft are rebuttals to the dissenters and to Roberts’ argument for more restraint from the court.
Mustering only the slightest deference for the chief, Alito’s opinion declared: “The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach.” Alito also bluntly dismisses one of the central tenets of Roberts’ opinion as “simply incorrect.”
The repudiation of Roberts in the abortion case was indisputable and prompts the fundamental question of what degree of leadership is or should be expected from a chief justice. There have clearly been chief justices out of sync with the majority of their colleagues.
Few people batted an eye when chief justices like Warren Burger or William Rehnquist found themselves in dissent. It’s also true that few decried a lack of leadership by Roberts when he joined most of the court’s conservatives on the losing side of 5-4 cases like the 2015 ruling that found a federal constitutional right to same-sex marriage.
The public is also witnessing a court that has shifted rightward in the past few years, leaving Roberts at one point at the ideological center of the court at least on some issues and now at least in relative terms to the left of the migrating center of a court with a six-justice supermajority.

“No one can deny that from 2018 until when Ruth Bader Ginsburg died this was the Roberts court in every way that mattered,” Vladeck said. “The consequences of that no longer being true are incalculable but run the gamut from what the court is doing to how justices are behaving to how the institution functions. ... When the median vote on the court became Brett Kavanaugh and Amy Coney Barrett, it’s a very different court than any of us have seen in our lifetimes.”
Some experts believe the differences the court’s Republican appointees have with Roberts will soon be papered over as the conservative majority focuses on pressing its agenda in other areas like affirmative action and reining in the power of the regulatory state, issues where Roberts tends to be more aligned with his conservative colleagues.
“This is the moment conservatives have been waiting for,” Wermiel said. “I think they’ll figure out how to continue to work together. ... The conservative majority has a lot of work to do next term.”
Still, when the history of the Roberts court is written, the outcomes of those cases seem unlikely to challenge for top billing the abortion decision where the chief justice essentially stood aside as his conservative colleagues unleashed the most impactful and controversial decision in nearly half a century.
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From Axios today:

Clarence Thomas is suddenly, for the first time since his confirmation, the main character at the Supreme Court.

Why it matters: Thomas is more powerful than he’s ever been inside the court, and ideas that the legal establishment once treated as his quirky hobbyhorses now carry increasing weight.

Driving the news: Thomas handed down two bombshell opinions within 24 hours last week.

First came a majority ruling striking down strict limits on concealed weapons. The next day, he issued a concurring opinion in the court’s abortion ruling that said the justices should not only have struck down Roe v. Wade, but should also revisit other precedents, including the rights to contraception and same-sex marriage.

The big picture: Thomas has spent years essentially laying out a whole parallel understanding of the law. He’s one of the court’s most prolific authors of solo dissents, according to Adam Feldman of Empirical SCOTUS, and has also written a slew of solo concurrences similar to last week's.

Thomas doesn't just write a dissent here and an additional point about a majority holding there, but rather has created a whole ecosystem of opinions that build on and reference each other almost in the same way as the court’s actual precedents, except for the fact that they are all one man speaking only for himself.

Thomas’ solo opinion in last week’s abortion case cited 11 of his past opinions, 10 of which were solo opinions. It drew more heavily from the Clarence Thomas Cinematic Universe than from the rest of the court’s historical precedents, dissents and non-Thomas concurrences.

But as the makeup of the court has shifted around him, Thomas’ views have gotten more influential. And that influence will only grow.

“There’s this whole array of concurring and dissenting opinions that are now available for the majority on the court to take more seriously,” said Ralph Rossum, a professor at Claremont McKenna College who wrote a book about Thomas.

Thomas has been able to “plow the field and plant the seeds” that other justices would later “harvest” for their own majority opinions, even if they didn’t join Thomas at the outset, Rossum said. “You see that coming to fruition again on abortion,” Rossum said.

Details: The Supreme Court has protected rights to abortion, same-sex marriage, same-sex intercourse and contraception under the same legal doctrine, known as “substantive due process.”

Thomas rejects that entire theory, and so he would throw out every ruling that relies on it.
“That's classic Thomas. There isn't a justice on the court less committed to reliance on precedent than Thomas,” Rossum said. He said Thomas believes the court spends too much time interpreting its own work and too little time on the Constitution.

The court’s majority opinion in Dobbs, written by Justice Samuel Alito, did not say that substantive due process is altogether nonsense, as Thomas would have said. But it adopted a very narrow view of which rights the doctrine can protect. Outside of the conservative movement, it can seem like a distinction without a difference.

“Although Alito and Thomas are coming at it from different places, both are making arguments that suggest the fundamental rights that the court has protected should be rolled back,” said David Gans, the director of civil rights at the Constitutional Accountability Center, a liberal legal advocacy organization.

Behind the scenes: An important detail of the court’s inner workings has helped elevate Thomas.

Once the justices decide how they’re going to rule in a given case, the most senior justice in the majority decides who will get to write the ruling.

A lot of power rests in that assignment, and Thomas has rarely gotten to wield it — until now. On the 6-3 court, Chief Justice John Roberts is the only one more senior than Thomas. So any time Roberts joins the court’s liberals, and the rest of the conservatives stay united, Thomas will get to decide who writes the majority ruling.

He can assign it to himself, if it’s an area of law he feels strongly about, or choose whichever of his colleagues he believes will get the closest to his own interpretation while still keeping the majority intact.

What’s next: Thomas’ newfound seniority and the court’s overall ideological balance aren’t going anywhere. And he will have ample opportunities to make his mark on the law.

Thomas has been an outspoken critic of affirmative action in college admissions — it’s one of the issues he seems to care about most deeply. The court has an affirmative action case already on the docket for its next term.

He’s also been a longstanding critic of the administrative state, an area of law where the court will likely be particularly active over the next several years.

The bottom line: “I think [the court] will continue to move in his direction — not as conclusively or as profoundly as he might want,” Rossum said, but enough that Thomas likely will be “extraordinarily influential going forward.”

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The WITCHING HOUR