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With Roe on the rocks, the Roberts court exists in name only

The chief justice who has long urged associates to call balls and strikes is increasingly losing sway in an era of justices wanting to pitch and bat.

WASHINGTON (CN) — While the Supreme Court is poised to easily overrule Roe v. Wade without even the full force of its conservative supermajority, experts say the expected silence from Chief John Roberts in that decision speaks volumes about his waning influence during nearly two decades of power. 

During his years on the court, Roberts has cultivated an identity around protecting the integrity and legitimacy of the court. Last year, he pulled off a near anomaly in modern American politics gaining approval from 60% of Americans across all walks of the ideological spectrum despite low approval ratings for the institution he leads. 

This term could see all of the work Roberts has done to maintain the court’s integrity crash and burn. 

“Roberts for many years, for decades really, was the unrivaled leader of the Supreme Court,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone call. “He was an intellectual leader. He was a leader that cast the deciding vote. … He also was able to temper the most extreme views of his fellow justices in an effort to preserve the integrity and stature and legitimacy of the court itself as an institution and to gain public trust in the Supreme Court an institution. All of those things have collapsed in a heap.”

Despite holding deeply conservative views, Roberts has been viewed as a moderating influence on the court and has been able to temper some of his more extreme colleagues’ views. As chief justice, Roberts gets to assign the opinion in a case as long as he’s in the majority. This gives him the ability to shape rulings to be more moderate by advocating for incremental changes to the law instead of overturning established precedents

But now Roberts finds himself on a court with a conservative supermajority that no longer needs his vote, and that has left him in the minority without the ability to temper rulings. 

The result of this is seen clearly in the draft opinion of Dobbs v. Jackson Women’s Health Organization, which could overrule Roe v. Wade. While it appeared in oral arguments that Roberts wanted to take a more incremental view of curbing abortion rights — adopting Mississippi’s 15-week ban without fully overturning Roe — his colleagues signed on to a draft that takes the most extreme approach. 

“It does seem like Roberts was a moderating force for that conservative voting bloc, and if they needed his vote, it's very likely that they would have had to moderate the opinion to not explicitly overturn Roe,” Maya Sen, a professor at the Harvard Kennedy School, said in a phone call.

Public polling following the leak of draft opinion showed a sharp decline in public confidence in the court. From 70% of registered voters who expressed confidence in the court in 2020, that number has dropped to 51%, according to a poll from Yahoo News/YouGov. The poll also found that 53% of all Americans said they had little to no confidence in the Supreme Court. 

“The public is not impressed with the Supreme Court a moment, and I think that the integrity of the court is at stake,” Gostin said. “It might have tainted the whole next generation against the court. The court is not seen as an independent, nonpartisan arbiter, guided by the law.” 

This is in direct conflict with Roberts’ idea that the justices are supposed to call balls and strikes, and not to pitch or bat.

But public confidence is not the only problem Roberts is facing with this case. The draft opinion overruling Roe was leaked in an unprecedented breach of the court’s protocols. This means that Roberts is facing critics outside the court with regard to the court’s integrity as to his role in this decision, and he still has to worry inside the court about internal deliberations taking center stage in the press. 

“In the most important case at least within a half a century, you've got the chief justice in the minority, you've got an opinion that's leaked out to the public, and you've got an opinion that is slash and burn, uncaring about public sensitivities and values, with a blase disregard for precedent,” Gostin said. “So you can't even call this Roberts’ court anymore.” 

Roberts reacted to the leak by calling it a “singular and egregious breach of trust that was an affront to the Court” but insisted that the “betrayal of the confidences of the Court” wouldn’t undermine its operations or affect its work in any way. Even amid an investigation he launched into the leak, information keeps spilling from the court. This weekend a Washington Post article claimed to have three sources with inside knowledge of the justices' votes on the case. 

A leak of this magnitude is likely to lead to some tension in the court, and experts say Roberts’ investigation could be facing an uphill battle considering the justices’ preference for privacy. 

“One of the things that are going to make this difficult is that the justices themselves may or may not be comfortable being questioned on these things,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone call. “They are notoriously focused on protecting their own privacy and security. … So they may or may not feel comfortable talking, and it's possible that some justices may not want investigators talking to their clerks.” 

While Roberts has used his influence on the court previously to prevent erosion of the court’s integrity, there might not be much he can do in this case if the majority has already made their decision.

“Unless he can do a Houdini act with the justices to get them to become much more incremental in its review of Roe v. Wade and to have a much more moderating opinion, there's very little he can do to reestablish his influence on the court itself, on the justices,” Gostin said. 

What Roberts does still have, however, is the ability to write a dissenting opinion in which he could shape himself as the moral leader of the court. 

“If I were him, I would write an impassioned dissent,” Gostin said. “And it wouldn't be a dissent unlike Sotomayor or Kagan would write. It would be a dissent based on his disappointment, about respect for the institution of fidelity to precedent and an incremental approach. This dissent of Roberts should be his most important opinion ever, even though he's in the minority. That would go a long way to reestablishing himself as at least the moral leader of the court.” 

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