He helped hoist the banner against Roe in the Ronald Reagan and George HW Bush administrations. But years later, during Senate hearings in 2005 for the post of chief judge he now holds, Roberts testified that Roe should be respected as a precedent, especially after being confirmed in 1992. And he has largely stuck to that.
Dueling parties in the Mississippi case known in the Dobbs v. Jackson Women’s Health Organization have slung their panties with lines from Roberts’ views on abortion rights and the value of complying with precedent or alternatively discarding it. The Chief Justice writes with care and never leaves himself in cement, which leaves both sides emphasizing the words that suit their purpose.
Roberts represents more than one voice among the nine. As head, he leads the discussion. If he is in the majority, he also assigns the opinion that will speak in court. Moreover, Roberts has sought to inspire public confidence in the federal judiciary and repeatedly argued that its statements reflect the neutral, impartial views of the courts rather than any political instincts.
Both Roe v. Wade, nearly half a century ago, and the resolution that confirmed it two decades later, Planned Parenthood v. Casey, declared viability to be the limit to when the pregnant woman’s interest could be overshadowed by fetal protection.
“Casey reaffirmed ‘the most central principle of Roe v. Wade’, ‘a woman’s right to terminate her pregnancy before viability,'” Roberts wrote in a 2020 Louisiana case, citing the 1992 decision.
The question now is whether that line holds.
Reagan and Bush years
After graduating from Harvard Law School and graduating from the then Supreme Court Attorney William Rehnquist, Roberts joined the Reagan administration in 1981.
Reagan had campaigned on a platform against Roe v. Wade and made a statement about “the sanctity of innocent human life.” His administration worked against reproductive rights in its political agenda and lawsuits.
Roberts, who was a junior attorney in the Reagan Justice Department and then the White House law firm, took more responsibility for the administration’s legal agenda when First President Bush took office in 1989. Roberts became an attorney general in the United States representing the federal government before the high court.
“We continue to believe that Roe was wrongly decided and should be ignored,” the Bush administration claimed in the letter signed by Roberts. It argued that Roe v. Wade lacked any support in the text or history of the Constitution. The Supreme Court had justified the right to terminate a pregnancy in the Fourteenth Amendment’s just process guarantee of personal liberty and relied on previous cases affirming personal rights to privacy.
The Supreme Court ruled narrowly for the Bush administration in Rust v. Sullivan, allowing the government to ban abortion-related counseling at federally funded clinics, but omitted any new review by Roe.
On the bench
During Senate hearings, when President George W. Bush first elected him to a U.S. Court of Appeals and then raised him to the Supreme Court, Roberts said his arguments on behalf of previous administrations reflected his professional advocacy and not necessarily his personal views. He also said that Roe was entitled to respect according to the principles of “stare decisis”, that is, compliance with precedent.
Nor has he voted as rigidly against abortion rights as Judge Brett Kavanaugh or been as personally outspoken as Barrett. Before becoming a judge, Barrett, a law professor at Notre Dame, was a vocal critic of Roe v. Wade, including signing a statement condemning Roe’s “barbaric legacy” and calling for “the unborn to be protected by law.”
Roberts is a lifelong Catholic whose wife, Jane, provided pro bono legal advice to anti-abortion nonprofit Feminists for Life. Roberts told senators in 2005 that his faith would not be a factor in his decisions.
Two years after his confirmation, Roberts helped create a five-justice bloc to rule that the federal government could ban an abortion procedure in which the woman’s cervix expands and the fetus is removed intact. Critics called it “partial abortion.” The 2007 Supreme Court ruling essentially amended a 2000 ruling that had invalidated a similar ban on the Nebraska Act procedure.
The Supreme Court’s next major abortion case came nearly a decade later, in 2016, and Roberts was dissenting when the majority struck down Texas demands that doctors who perform abortions obtain “hospitalization privileges” at a local hospital and clinics convert to expensive hospital facilities. .
The Mississippi case stands to change reproductive rights. It is not centered on a discreet regulation of abortion, but a wholesale ban after 15 weeks of pregnancy. The state wants the district court to overturn the possession of Roe, which protects a woman’s decision to terminate a pregnancy before viability.
Mississippi officials claim “Roe and Casey are indefensible” and draw lines from Roberts’ opinion in the 2020 Louisiana case, which suggests that the balancing of government interests and women’s reproductive rights should be left to “legislators, not judges. . ”
“The greatest purpose of stare decisis is to serve a constitutional ideal – the rule of law,” writes the Mississippi State Attorneys, adopting Roberts’ 2010 statement, arguing that “sticking to Roe and Casey” does more to harm this constitutional ideal. than to promote it. ”
A group of constitutional scholars who support the Jackson Women’s Health Organization oppose these arguments with other lines from Roberts’ Citizens Union statement, noting that he wrote that “fidelity to precedent – the policy of staring-decisis – is crucial to proper practice. of the judicial function. ” Even when he voted to overturn the precedent, Roberts had observed in that case that stare decisis promotes a predictable development of the law, promotes dependence on decisions, and contributes to perceptions of legal integrity.
The Jackson Women’s Health Organization itself briefly quotes Citizen United as arguing that while some may disagree with previous rulings, “it is crucial that legal protection persists without the most dramatic and unexpected changes in law or fact,” so justice does not seen as simply exercising their own preferences.
Other supporters of the Jackson Women’s Health Organization, including the Department of Justice, represented by the administration of Joe Biden, revive Roberts’ claim from the June Medical Services case that “for precedent to matter, the doctrine (of staring-decisis) must give way. only on the basis of a rationale that goes beyond whether the case was settled correctly. ”
And that is the essence of the Supreme Court’s loyalty to precedent. The principle extends beyond whether a decision can be called “correct” or “incorrect” to whether it remains so central to U.S. law and sufficiently invoked – ultimately – preserved.