New reporting from Joan Biskupic at CNN this week confirms what many court-watchers suspected happened around the leak of the draft opinion in Dobbs v Jackson last May: Chief Justice John Roberts was privately lobbying his fellow conservatives—particularly Justice Brett Kavanaugh—to save the core holding of Roe v Wade while ruling on the challenge to Mississippi’s abortion ban. While Roberts ultimately failed to persuade any of the conservative justices to pump the brakes on overturning the nearly fifty-year-old right to terminate a pregnancy, as CNN sources confirm, the leaking of the opinion made any Hail Mary efforts impossible. His internal diplomacy tactics “were thwarted by the sudden public nature of the state of play.” The leak, in other words, served to preserve the preexisting 5-4 battle lines that fell into place after Dobbs was argued.
This certainly seems to confirm that the side that benefitted most from the leak was the side that won in Dobbs, a theory that was bolstered when the Wall Street Journal’s editorial page leapt into the fray—even before Dobbs was leaked—with an editorial on April 26 warning that Roberts, who has famously worked the internal levers in crucial cases in years past, “may be trying to turn another Justice now.” Conservatives evidently knew what Roberts was attempting to do and were warning him to stop. It thus served their interests both to leak the opinion, and then to try to press Roberts to issue the final decision even before the dissents were written. We may never know the truth about who leaked—the court’s internal leak investigation seems to have gone… away. Which means we may never learn more about what happened or why.
In the absence of information, we are left to conclude that the chief justice has swiftly lost his superpowers of persuasion and deal-brokering, and, as a consequence, he has utterly lost his court. This is both sad, in a sense, and unsurprising. The moment Amy Coney Barrett was seated, the chief became essentially irrelevant to the vote tallies. This past term, and the new CNN reporting, have simply confirmed that.
But one more observation is perhaps warranted before we leave Roberts in the rearview mirror, waving sadly at his legacy, which may ultimately prove to be less that of John Marshall than John Stamos. What the conservative legal movement most loathes about John Roberts, what makes him more hateful and treasonous in their eyes than any living conservative, is that he was transactional, a compromiser, a doer of deals. On rare occasions—mostly those on which History beckoned—he could be in play. That was intolerable to conservatives who could brook no compromise. Perhaps ironically, that is precisely the quality that eventually most infuriated liberals about Justice Stephen Breyer. He too believed in compromise, in making concessions, in subordinating personal goals for the good of the country, or the court. By the end, it just read to most progressives as appeasement. In much the same way Roberts’ behavior read to conservatives.
It speaks volumes about this political moment, and also about the nature and current posture of the Supreme Court, that two of the people who still regarded their participation on a multi-person court as a project in relationship-building and compromise and the long-term banking of trust and goodwill to achieve tolerable outcomes for everyone, are now wholly sidelined. Breyer has retired and Roberts is left conducting an orchestra that has chosen to play its own discordant symphonies. Elena Kagan, perhaps the only other institutionalist left in the building, is quietly imploring her colleagues to prioritize the court as a court, even as they choose to operate from a place of pure power.
It also speaks volumes about this political moment, and also about the nature and current posture of the Supreme Court, that the lingering concern for institutional stability or even for interpersonal civility, codes as weakness on both sides of the political spectrum. It speaks volumes that Justices on both sides talk with increasing anxiety about the need for internal civility and that each side maintains that the incivility is coming from the other flank.
It is clear that the era of compromise, of meeting in the middle, of occasional half-a-loafing is as over at the court as it is in Congress. Maybe the value of such moves was always overstated, and maybe it always served as stagecraft more than reality. But there is a causal connection at work here that has less to do with winking and horse trading, or even with civility in interpersonal conduct, than with simple judicial humility. Both Breyer and Roberts, whether you dismiss them as squishes or laud them as statesmen, believed in sitting down with the other side and hearing their best arguments. They believed that you treated those arguments with some respect in your drafting, for the same reason you treated your colleagues with respect in your speeches. The humility they were capable of evincing was not just institutional but personal (that humility benefitted the institution, but also ensured that they were treated as they wished to be treated). Neither Justice believed himself to be correct about everything, and neither assumed that the other side was comprised solely of bad faith liars.
Even if you believe that this quality matters not at all on a multi-party court, its public performance mattered a lot. Moreover, its absence means that we will be hearing a lot more smug speeches, and reading a lot more nasty attacks. The reason some semblance of ideological “balance” mattered at the high court was because we need at least the illusion of jurists capable of self-doubt. It wasn’t only about doing deals.
In his own elegiac concurrence in the Dobbs decision, Chief Justice Roberts bemoaned in his colleagues on both sides of the case “a relentless freedom from doubt on the legal issue.” This was a freedom from doubt he personally avowed he “cannot share.” To be sure, Roberts was “free from doubt” in a lot of really dubious cases—from Citizens United to Shelby County to a raft of 6-3 decisions this past term. But we are entering a Supreme Court era in which the Justices will largely operate free from doubt or intellectual humility or even meaningful interest in hearing opposing arguments. They are already insulated from the public they serve and they are increasingly insulated from public criticism. They will never really have to grapple seriously with ideas they do not share, and so they will become ever more certain that those ideas are unworthy of serious consideration. That we all tacitly approved such polarization, on both sides, is very of the moment and also hardly surprising. That it will ultimately be bad for the court, the country, and the law is also certain. We may not fully miss it until it’s gone.