On the most recent episode of Amicus, Dahlia Lithwick welcomed the New Yorker’s Jeffrey Toobin and NYU School of Law professor Melissa Murray to discuss last week’s big abortion decision, June Medical Services LLC v. Russo, in which Chief Justice John Roberts chose to strike down Louisiana’s restrictive abortion law. Murray and Toobin debate what this means for Roberts’ jurisprudence and whether he’s moving to the left. Read a portion of their conversation, which has been edited and condensed for clarity, below.
Dahlia Lithwick: In June Medical, Roberts was not willing to make a judgment about whether Louisiana’s abortion law was pretextual. His problem with Louisiana was hutzpah—that the 5th U.S. Circuit Court of Appeals and Louisiana were overturning 2016’s Whole Woman’s Health and that’s not appropriate, right?
Jeffrey Toobin: John Roberts could have voted either way. When they took June Medical, why would you take the exact same case four years later, other than to reverse it? That was my thinking. So I was surprised by the outcome. John Roberts, for the first time in his 15 years on the Supreme Court, said, State, you can’t do this to stop women from having abortions. And that, to me was, mind-blowing. I think of John Roberts as a dedicated pro-life justice, and he didn’t vote in the pro-life position. If he wanted to approve regulations on abortion, he could have voted to affirm the 5th Circuit. And he didn’t. And that to me was bigger than the terms he used in his opinion.
You’re right that you can’t separate this from his defection on DACA and his defection on Title VII. It’s clear that this is not the chief justice that we saw even this time last year.
Toobin: All of us who cover the court are always asked, Well, what do they really think? And what’s going on? And the honest answer is, Who the hell knows? I don’t know. I have no access to John Roberts’ inner most life. But here you have three enormously consequential cases. Oftentimes we talk about these cases in abstractions. These three cases have a huge impact on people’s lives. It is now illegal in the entire United States to fire gay people just because they’re gay. That’s wasn’t true a month ago. Seven hundred thousand Dreamers, if that case went the other way, would have been subject to deportation today, and they’re not. And now Louisiana will have seven abortion clinics instead of one if that case had gone the other way. That’s just enormous. And John Roberts voted with the liberals on all of them. As I say, I can’t explain what’s going on in his head, but that’s not the John Roberts who wrote Shelby County, killing the Voting Rights Act. Something is happening in his jurisprudence. I don’t think he’s becoming Ruth Bader Ginsburg, but he does not appear to be the same John Roberts he was two, five, 10 years ago.
Melissa, I want you to react. Mostly because I’m watching your face on the Zoom and it’s so expressive.
Melissa Murray: My face has no chill. That’s why I can’t play poker. So Lee Epstein at Washington University in St. Louis and Andrew Martin and Kevin Quinn have talked about this idea of judicial drift: that over time justices move further to the left. And maybe that’s something that’s happening here, but I don’t think that that’s it. I think John Roberts plays a long game. He’s a canny and savvy person, and I think he is playing a long game. And I don’t want to take away anything from those victories in the Title VII cases or in DACA, but I want to note that those are not wildly overblown, progressive victories. So in Bostock, the Title VII case, John Roberts joins what is a very straightforward textualist opinion that reaches a progressive result. But the logic of it and the methodology that’s deployed are actually quite conservative. We don’t get into the heads of legislators. We simply look at the words on the page, and we apply the plain meaning of those words. That’s a very straightforward kind of methodology, even if it yields a progressive outcome. And in DACA, the chief justice is not endorsing DACA; he is not saying that this is a good idea. He’s simply saying that the Trump administration, as in so many other cases, failed to dismantle this program in the way that the law requires. Go back and dismantle it the right way. It just so happens that it’s unlikely that it will be dismantled because this is an election year. But leaving that to the side, if the Trump administration prevails in November and is back in power in December, DACA will be dismantled in the appropriate way, following the Administrative Procedure Act.
And so here, you have a similar dynamic. And again, I come back to the DACA opinion, because I think they’re both of a piece, right? Go back and do it better. You can’t present us with a law that is virtually identical to a law that we struck down only four years ago and nothing has really changed. And it’s not enough to say that Louisiana is markedly different from Texas. This law, we know, has no medical benefits. Go back and find some better law that’s different, that’s not squarely on point with the precedent we decided four years ago, and then you’ll see the John Roberts you’ve known and loved for generations. And more importantly, a John Roberts who, even as he hands you this partial victory, in the text of this opinion actually strips the 2016 decision of all of its substance. This is just like Casey, which gutted Roe and left a Potemkin village shell of the abortion right in place, stripped it of its substance. Here, Whole Woman’s Health nominally survives, but the benefit and burdens analysis is all gone. And the precedent that John Roberts is really upholding here is the Casey precedent, which honestly was a victory for abortion opponents because it gave the states wide latitude to legislate abortion out of existence.
Toobin: But Melissa, he had a choice in all three of those cases. There were three justices in the Title VII case, and four justices in the DACA case, and four in the abortion case, who said, It’s fine the way it is and you don’t have to redo it. You don’t have to redo DACA and it’s OK to fire people because they’re gay, because Title VII doesn’t say what you say it says. So you give a very persuasive analysis of Roberts’ opinions, but he had a choice and he went in the liberal direction. And that, to me, is just amazing.
Whatever John Roberts is, he’s not a Trumpist, right? Here he is, bopping Bill Barr’s Justice Department on the nose time and time again, and I think that’s interesting to me. That whatever he is, he’s not Samuel Alito. He’s not Clarence Thomas. Alito rushes to the Kermit Gosnell place. Here’s Neil Gorsuch talking about fetal tissue floating around in clinics, right? None of that. This is not an emotional opinion—I hate abortion. We’re going to use this fleeting moment we have of Trumpism to roll back everything that’s happened since the Warren court. Roberts is not that.
Murray: I don’t disagree with you, but I’m going to propose a provocative counterfactual. What if, in 2005 when John Roberts was nominated to replace Sandra Day O’Connor, what if Chief Justice William Rehnquist had not died and John Roberts was not subsequently then proposed to be his replacement as chief justice, and he was instead in the Alito seat as an associate justice? I think you get a very different John Roberts. One who is more willing to live and die by those conservative legal movement principles. In the position of chief justice, John Roberts is a very different animal. One who plays a long game and is a more savvy operator who recognizes that this is an election year. The country’s incredibly polarized. The country looks like it’s about to just explode with racial division.
Is this the moment to set off a flare about abortion rights? Probably not. And so I think you get him thinking institutionally about what it means in this moment to uphold this law that looks so much like a law we just struck down, to do so would to be to brand the court as obviously nakedly partisan and politicized, which is something that time and time again, we have seen he does not want. He is the most stalwart protector of the court’s institutional integrity. And I think that comes out in this opinion.
Toobin: To which I can only respond, “Good. I’m glad he feels that way.”
Murray: My uterus breathes a sigh of relief, but it’s also convulsing, waiting for four years from now when maybe we’re out of the woods, maybe Donald Trump is still president, maybe there is another vacancy on the court, and you do have a 6–3 majority, and suddenly you don’t have to look like an institutionalist anymore because this doesn’t look so fraught.
Toobin: I share precisely that concern, except that I had less confidence that Roberts would be concerned about keeping the court in the center. One of the things about the Supreme Court that I always think about and that I think is very relevant for Roberts is that his title under the Constitution is not chief justice of the Supreme Court. It’s chief justice of the United States. And I think he’s very aware of that. He feels an institutional responsibility for the judicial branch of government.
And when President Donald Trump said there are Obama judges and there are Trump judges, Roberts jumped in. I actually agree with Trump on that. In most of these provocative cases, of course there are Trump judges and there are Obama judges, and they’re going to see things differently. But Roberts is very concerned about the institutional respect that the court receives.
Frankly, I don’t think approving these abortion regulations in Louisiana, had he done so, would have set off a lack of institutional respect for the court, except among those of us who follow the court. The evil genius of these regulations is that they don’t look like an outright outlawing of abortion, even though they often have that effect. So I guess I give Roberts a little more credit, maybe that’s just because of my testosterone.