Writing at the Volokh Conspiracy site today, law professor Josh Blackman expresses some concern that Chief Justice John Roberts might be up to his old tricks again. Specifically, Blackman parses the tea leaves from a Wall Street Journal editorial calling for an end to Roe v Wade (and Casey) and detects possible hints that Roberts is trying to save the decision by winning one of the two newest members over to the liberal side.
While reading the piece, I had flashbacks to NFIB v. Sebelius and Bostock. In both cases, rumors began to swirl that a conservative Justice was going to vote with the left. And, in both cases, there was a sustained public relations campaign on the right to shore up the wavering Justice. And, in neither case did those efforts work. I wrote about the Obamacare leaks in my first book, Unprecedented, and I wrote about potential leaks in Bostock here.
He then quotes part of the WSJ editorial which sets up the basic divide on the issue: [emphasis added by Josh Blackman]
Judging from the Dec. 1 oral argument in Dobbs, the three liberal Justices would bar the Mississippi law that bans abortion after 15 weeks as a violation of Roe and Casey. Justices Thomas, Neil Gorsuch and Samuel Alito are likely votes to sustain the law and overturn both precedents. Justices Kavanaugh and Barrett seemed, in their questioning, to side with the three conservatives…
But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an “undue burden” on the ability to obtain an abortion…
The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.
So three liberals who would uphold Roe and Casey. Three conservatives who would overturn both and two more conservatives leaning that way. But CJ Roberts wants a middle-ground and if he can win over either Kavanaugh or Barrett, he could get a 5-4 decision to preserve Roe. All of this leads Blackman to wonder if something has leaked to suggest we’re headed for another decision like the one we saw to preserve Obamacare.
This seems like very, very specific information. Has there been a leak? And which (singular) colleague is Roberts trying to turn?
Blackman admits that he doesn’t have proof of any leaks, it’s just a feeling he has that reminds him of two previous occasions when something like this happened. He suggests that if we start seeing more oblique references to CJ Roberts trying to sway one of the conservatives at sites like National Review that would be a clear sign that something is circulating about what is happening behind the scenes.
It’s really not hard to believe that CJ Roberts is looking for middle ground, i.e. allowing the Mississippi law to stand without overturning Roe and Casey. Roberts might see that as much preferable to placing the court at the center of left-wing outrage. But would he really have a chance at convincing Kavanaugh and Barrett to preserve Roe? Bloomberg published an opinion piece looking at that question last August. They thought there was at least some possibility Kavanaugh might be swayed to become the court’s new swing-vote.
Justice Amy Coney Barrett might conceivably be open to an argument based on precedent. But her jurisprudence, her background, and the influence of the late Justice Antonin Scalia on her judicial outlook all suggest she is willing to reverse Casey and Roe. And it is almost impossible to imagine her casting the deciding vote to uphold Casey by 5 to 4.
That leaves Kavanaugh, who clerked for Kennedy, remained personally close to him, and observed the path (and power) of the swing justice from a front-row seat. So far, Kavanaugh has weighed in on the abortion issue mostly indirectly…
On the one hand, Kavanaugh is a politically astute and sophisticated judge who wants to matter. The only way for him to become a significant justice on the court as currently configured is to be the swing voter. If he consistently votes with the other conservatives, he becomes just one of five (or six) votes, without the power to control the law.
As the swing justice, he would often have the power to decide the law on his own. He would be able to influence both conservative and liberal justices in a wider range of cases, because they would know they needed him to win the big cases.
I would add one more thing to that. Kavanaugh’s confirmation hearings were pretty traumatic. If he were to become the last vote to preserve Roe and Casey it would be a pretty dramatic way for him to say to all of his left-wing critics “You were wrong about me.” I’m not saying he’s going to make a decision on that basis but it might add a little to the appeal of the idea.
It’s all speculation at this point but it does look like this is shaping up as a 5-4 decision one way or the other.