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First someone leaks a draft opinion to Politico, and now insiders are leaking about SCOTUS deliberations and negotiations to CNN. The issue of abortion has apparently transformed the Supreme Court into the Sieve Court. With an apparent 5-3 lineup set to overturn Roe based on Justice Samuel Alito’s draft majority opinion in Dobbs, Chief Justice John Roberts has reportedly argued to retain Roe while dumping Casey as a compromise position.
Or so CNN and its sources say, anyway. Assuming this is on the level …
It appears that five justices would be voting to overturn Roe. Chief Justice John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from part of Alito’s draft opinion, sources tell CNN, likely with the court’s three liberals.
That would mean that the five conservative justices that would make up the majority overturning Roe are Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.
I suggested this very scenario last night when the 5-3 number first came up, but not because anyone passed along any choice SCOTUS gossip. One of the few privileges of the Chief Justice is that Roberts can choose to author any majority opinion on which he concurs, having a sort of “super seniority” in that sense. Otherwise, the option of writing the opinion would normally fall to the most senior justice in concurrence with the majority. The Chief Justice has the authority to assign the task to someone else, however, if he is in the majority. (Similar rules/traditions operate in combined dissents.)
If Samuel Alito is drafting the majority opinion, then it follows that either Roberts doesn’t concur or that Roberts specifically wanted Alito to author the governing opinion. But why would Roberts, perhaps the most politically sensitive justice in the current court, want a hardliner like Alito to write it? If Roberts concurred, then he himself would be the natural choice if Roberts wanted to moderate or at least modulate the governing precedent. Alternately, Roberts would likely have chosen Barrett to write the opinion if he opted out in order to have a woman author the opinion.
Who needed another leak? All we really needed was the math.
Assuming any and all of this is on the level, it looks like we have a 5-3 split with Roberts somewhere in the middle. The question is whether Roberts will remain content to take the almost-literal split-the-baby position of defending Roe while dumping Casey. That’s the only position left to the middle of this dispute, and that’s not exactly a coherent position; like Solomon’s answer, it’s designed to appeal to no one. If Roberts wants to overturn Casey, then why not Roe as well? Both have reliance interests, both are fairly longstanding precedents, and there is no constitutional theory or stare decisis argument for Roe that doesn’t also apply to Casey.
If that’s what Roberts has in mind, it’s intellectually unsustainable, and likely why he’s apparently all alone on this position. It almost sounds akin to Roberts’ attempts to play politics with the 2012 ObamaCare decision, in which he quailed under political pressure and wrote a justification for upholding it under Congress’ taxation power, an argument that its defenders had eschewed. If this report is correct, and the numbers strongly suggest that it at least is in range of Roberts’ position, expect him to be almost equally scorned by both sides, although I certainly won’t be the first or last to compare this to the ObamaCare cave.
The real question, again assuming any of this is accurate, is whether Roberts is still campaigning to get at least one and hopefully two justices from the majority to peel off. For that to work, though, Roberts would also need the liberal wing to sacrifice Casey. That would provide five votes to keep Roe, but that’s a ludicrous expectation. The three liberal jurists will not dump Casey to keep Roe, not just because that compromise is both intellectually and constitutionally bankrupt but because they don’t want to have any restrictions on abortion tied to their records. The other five justices will apparently not go along with a complete upholding of Roe and Casey, so that seemingly leaves Roberts twisting in the wind alone.
Will he stay there? Or will he see the intellectual bankruptcy of the middle position and take a side on Roe and abortion?
Source: This post first appeared on HotAir