The Daily - Why Chief Justice Roberts Just Protected Abortion Rights

Episode Date: February 12, 2019

From the moment he was confirmed, Chief Justice John G. Roberts Jr. has been a reliable conservative on the Supreme Court. So why did he just side with the court’s more liberal members to preserve abortion rights in Louisiana? Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. From the moment he was confirmed, Chief Justice John Roberts has been a reliable conservative on the Supreme Court. So why did he just side with the court's liberal members to preserve abortion rights in Louisiana?

It's Tuesday, February 12th. Adam Liptak, tell us about this abortion case in Louisiana. So the question in the case is whether a Louisiana law that would severely restrict abortion in the state should be allowed to go into effect. It was a 2014 law enacted by Louisiana's Republican-dominated legislature. Opponents of the law say that if it does go into effect,

the number of clinics in the state will be reduced to one. The number of doctors authorized to perform abortion in the state will be reduced to one, the number of doctors authorized to perform abortion in the state will be reduced to one, and they go to the court on an emergency application and say, please stop this law from going into effect at least long enough for us to come to you guys and argue about why the law violates the constitutional right to abortion. And this case, interesting enough in itself, is also the court's first encounter with an abortion case after a significant shift in personnel at the court. We just had Justice Brett Kavanaugh replace Justice Anthony Kennedy, and that's a big shift. Kennedy was a cautious supporter of abortion rights. Justice Kavanaugh, based on his track record and based on what President Trump

said when he nominated him, Trump says he wants to put people on the court ready to strike down Roe v. Wade. Pro-life and pro-choice forces have their eyes on the U.S. Supreme Court over Louisiana law that says... The Supreme Court taking a big step on the hottest of hot button issues. Now, people on both sides of the abortion issue say Louisiana's law could serve as a major first test of how the majority conservative U.S. Supreme Court views abortion law. And then Thursday, we know that's the deadline court has to rule. And all day long, I'm waiting around for the decision. And I'm expecting the decision during business hours on Thursday. It doesn't happen. The workday ends and dinner time ends.

And it's after nine o'clock at night, sitting around, getting hungry, missing dinner at my desk, refreshing, waiting for an email from the court. Finally, at 9.30, the order appears, and it has a very surprising alignment of justices. A surprising defender of Roe v. Wade leads the U.S. Supreme Court today. The decision was split five to four. Chief Justice John Roberts siding with the court's four liberals. It has Chief Justice Roberts, ordinarily a conservative, in earlier abortion cases has been hostile to abortion rights, joining the four liberal members of the court to block the law, not to let it go into effect. It does suggest that Roberts is not a sure vote to overturn Roe v. Wade. He's been slightly more nuanced on this than I think some people expected.

In this case, Roberts gave us a surprise. Adam, how do you understand what led Chief Justice Roberts to make this surprise decision? Well, it's a little hard to figure out what in his background led him to make the decision, because he is a classic example of a product of the modern conservative legal movement. Highly credentialed, Harvard College, Harvard Law School, prestigious clerkships at various courts, including the U.S. Supreme Court clerking for then Justice, later Chief Justice William H. Rehnquist, stints in the Reagan White House and Reagan Justice Department, Deputy Solicitor General in the George H.W. Bush administration.

And so when Sandra Day O'Connor announces that she's going to retire in 2005, he is a frontrunner for the job. One of the most consequential decisions the president makes is his appointment of a justice to the Supreme Court. And ultimately gets appointed by George W. Bush. And tonight I'm honored to announce that I am nominating him to serve as associate justice of the Supreme Court. Who is persuaded that he will carry out the Republican Party's preferred outcomes in contested Supreme Court cases. He is a young man. He is only 50 years old. He is a practicing Catholic. His opinions seem to be very conservative, very conservative on abortion,

very conservative on a number of issues. Conservatives wanted someone who would voice their opinions and be on the court for a long time. At 50, you could expect that perhaps Justice Roberts could be there 25, 30, 35 years on the court for a long time, at 50, you could expect that perhaps Justice Roberts could be there 25, 30, 35 years on the court. And then something extraordinary happens. Supreme Court Chief Justice William Rehnquist has died at his home in suburban Virginia. Just before his confirmation hearings are about to begin, Chief Justice Rehnquist dies. Passing of Chief Justice William Rehnquist leaves the center chair empty. Just four weeks left before the Supreme Court reconvenes.

And George Bush switches the nomination. Judge Roberts has earned the nation's confidence. And I'm pleased to announce that I will nominate him to serve as the 17th Chief Justice of the Supreme Court. He's now going to replace Chief Justice Rehnquist as Chief Justice. A far bigger job. A bigger job and a different job. So in his confirmation hearings for Chief Justice, what kind of judge does John Roberts indicate that he will be? Well, he presents himself, but this is not unusual. As someone who's simply going to apply the law to the facts

and not bring any ideology or politics or personal views to the task, but merely and then and now loves this metaphor. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire. His point being that he would not be ideological.

He wouldn't be a partisan. Right. He took the view that a judge's job is divorced from politics. And I will remember that it's my job to call balls and strikes and not to pitch or bat. And that a Republican appointee should not come to a different conclusion than the Democratic appointee because the law is the law. So once Roberts is confirmed, does that appear to be how he operates as an impartial umpire? I'm sure that he thinks he is, and I'm sure he's operating in perfect good faith, but the voting pattern suggests something different. In the big cases, the cases that in a lasting way transformed American society,

he was a reliable vote in five, four cases with the conservative majority on the court so that, for instance, in 2008, he votes with the majority in District of Columbia against Heller. Where the Supreme Court ruled that the residents of Washington, D.C. do have a right to gun ownership. Which revolutionizes Second Amendment law and says that there is an individual right to keep and bear arms. In 2010, he's part of the five-justice conservative majority in the Citizens United campaign finance decision. That's the decision stating that when it comes to directly influencing our elections, corporations can spread their cash as freely as they wish, that money is speech and corporations have the same rights as people when it comes to spending it.

So in the big, big cases, he may think he's an umpire, but they're putting up some runs on the scoreboard, too. And by they, you mean the conservatives? The right side of the court, yeah. But our view of Chief Justice Roberts is transformed in 2012 in a challenge to the Affordable Care Act, where the expectation is that the law is going to be struck down, or if it's going to be saved, it's going to be saved by Justice Kennedy. But it turns out...

An epic decision, and this is it. As the justices voted 5-4 to uphold President Obama's controversial health care plan, this stunning ruling sent shockwaves across the nation. We have Chief Justice Roberts plus the four liberals saving the Affordable Care Act. The shocker of this ruling, Chief Justice John Roberts joined the court's liberal justices and saved the president's health care plan by, in effect, rewriting it. plan by, in effect, rewriting it. I think Chief Justice Roberts officially said to the Tea Party, you need to go back and read the Constitution.

So liberals all of a sudden started to love him, said he was a statesman. The conservatives were very, very dismissive, thought this was a kind of treason, were deeply disappointed because he was so much of their crowd. How could one of their own on the Supreme Court side with liberals on the court to uphold the constitutionality of the Democratic president's health care plan? Glenn Beck is now selling T-shirts. Look at that one with Roberts' face above the word coward. Sadly, John Roberts at his confirmation hearing, he correctly analogized the role of a justice to that of an umpire calling balls and strikes.

Well, he stopped serving as an umpire and he instead suited up and became a player on one of the teams that he put on an Obama jersey. Justice Roberts turned out to be an absolute disaster. He turned out to be an absolute disaster because he gave us Obamacare. Adam, as best you can tell, what changed? Why did Roberts vote the way that he did on the Affordable Care Act? I think Chief Justice Roberts, as opposed to an associate Justice Roberts,

Chief Justice Roberts has two competing impulses. One is the one we've been talking about, Michael, that he's generally conservative and would like to achieve generally conservative results. On the other hand, he's the Chief Justice of the United States, and he profoundly believes that he's got an institutional responsibility to be the custodian of the Supreme Court's legitimacy, prestige, authority. And you can't do that if your institution looks to be a purely partisan political machine. And this was our first real encounter with John Roberts going, I may have ideas about the Commerce Clause.

I may have ideas about the taxing power. But I know one thing, and that is that if a Supreme Court is going to strike down a Democratic president's signature legislative achievement in an election year with the five Republican appointees in the majority, the four Democratic appointees in dissent, that is not going to look good for my institution. Hmm. Because it might lead people to believe that the court is truly a partisan institution rather than the ball and strike callers of the law. Right.

And it would be hard to avoid that conclusion. So by that logic, if Roberts had been an associate justice, he might not have taken the same vote on the Affordable Care Act as he did as associate justice, he might not have taken the same vote on the Affordable Care Act as he did as chief justice, that he might have prioritized his conservative leanings over the idea of preserving the nonpartisan image of the court. So, of course, we'll never know. But I do think that an associate justice Roberts

would vote differently than a chief Justice Roberts in at least some cases. And one reason to think that's true is because essentially simultaneously with Roberts' appointment to the court, Justice Samuel Alito comes onto the court, and they have very similar backgrounds. And in the early years, their voting pattern is very similar. But political science data shows that over time, Alito drifts right, Roberts drifts left. And my hypothesis for why that is, is because they have different job titles. One is an associate justice, the other is the chief justice. That's fascinating. So if Roberts is leaning into this role of kind of protecting the court's larger image, its institutional standing. What is he protecting against? Well, the Supreme Court, of course, is an odd institution in which

we all do what it tells us to do. We all say the Supreme Court has the last word, and we may not be happy with what it does. They're going to decide the 2000 presidential election, and they're going to say Bush wins, Gore loses. And everyone goes, okay, Supreme Court has ruled. But why? They don't have an army. They don't have any money. Their power is by force of reason and legitimacy. And all chief justices have to fear that lo and behold, we wake up one morning and it's Venezuela and people say, that's nice. They issued a piece of paper, but we're going to do what we want to do. And so the Supreme Court needs to preserve its authority. It can't get too far out of line with the nation. There's a reason the Supreme Court took its time before it issued Brown v. Board of Education or before it established

the right to same-sex marriage, it wanted to make sure the nation was ready for it. And the reason people do what the Supreme Court says is because it has this capital of some kind, and Roberts has to protect that capital. So how else, after the Affordable Care Act ruling, does Roberts continue to protect the institution, in his mind, from a kind of lopsided tilt, especially to the right, that he seems to fear? There aren't a lot of examples until quite recently. He does join the four liberals in a couple of minor cases, but you don't want to oversell this notion

that in 2012 he did something in the Affordable Care Act case, and ever since then, he's been a liberal. Not so. He has picked his spots in which to try to protect the court from accusations of being too political. But at the same time, he has voted in a almost entirely consistently conservative direction. In 2013, for instance, he joins a five-justice majority ruling to tear the heart out of the Voting Rights Act. But it's really not until late last year when he gets in a back and forth with President Trump about judicial independence. You remember in November, Trump lost a ruling in an asylum case, and he says something like, This was an Obama judge, and I'll tell you what, it's not going to happen like this anymore.

And the Associated Press smartly sends a note to the chief justice saying, do you have anything to say about that? And there's no reason the AP thinks it's going to get a response, but it does. And the chief justice says, we do not have Obama judges or Trump judges, Bush judges or Clinton judges, Roberts said. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for. And that was a big move in the direction of trying to protect the authority and legitimacy not only of the Supreme Court, but of federal judges, because President Trump has really

violated very deep norms about how presidents talk about the judiciary. And it was quite interesting to me that the chief justice thought he needed to push back. I wonder if he feels it's especially important for him to play this role of the kind of court custodian because President Trump has delivered this very conservative court that people like Roberts have wanted for decades and speaks about the court in this unusually partisan way. I think John Roberts is in such a funny spot because it's a be careful what you wish for scenario. He has a court that has a lot of power to do the things that John Roberts might like to do and to do the things that President Trump might like to do. And that's almost a dangerous position to be in because you don't want the public to think

that this court is a subsidiary of Republicans and of the Trump administration. You want to make clear that it's an independent body. And that's hard to do given the composition of the court and given who put the most recent members of the court onto the court. And that makes Roberts have to push back to an extent against his own self-interest. Right. It's dangerous because it makes the court vulnerable to the very cries of partisanship that he seems to fear most. to the very cries of partisanship that he seems to fear most. Right, and I've got to think that, you know,

John Roberts is prepared to give large victories to the Trump administration, as in the travel ban case. But he doesn't want to be viewed as automatically on the side of the Trump administration. He doesn't like it, I have to think, when President Trump goes... We get a lot of bad court decisions from the Ninth Circuit, which has become a big thorn in our side. Well, that liberal Ninth Circuit has ruled against us. Always lose, and then you lose again and again, and then you hopefully win at the Supreme Court, which we've done. But we'll get this fixed in the Supreme Court. But it's a terrible thing when

judges take over your protective services when they tell you how to protect your border. It's a disgrace. Roberts would rather the entire judicial system be viewed as honest and neutral and judicious and not a wholly owned subsidiary of the Trump administration. We do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation. We're not Republicans. We're not Democrats. We're judges. And to be sure, there's a lot of evidence to the contrary. Right. But it's not the kind of thing you should say out loud. So this offends him, even though he generally does agree and vote with the Republican

appointed judges on the court. That's why he's such a fascinating figure in such a tough, tricky situation, because he's got these competing impulses. He's a conservative. He likes conservative results, but he's an institutionalist and he wants to protect this court's reputation. And these two things tug in different directions. So given that, how does Roberts' vote in the Louisiana abortion case fit into this tension that you're describing between Roberts, the conservative judge, and Roberts, the protector of the court's image? So this is an example of John Roberts, the institutionalist.

This is an example where this is the court's first encounter So this is an example of John Roberts, the institutionalist. This is an example where this is the court's first encounter with abortion, probably the most deeply contested legal issue in the American judicial system for decades and decades now. And I don't think that on a Thursday night at 930 at night with minimal briefing and having to shoot from the hip, as it were, he wanted to send the message that the court is ready to do away with abortion rights. At a minimum, Roberts wants to do it in a thoughtful and incremental way, not in a kind of shoot from the hip way, and similarly wants to send the message that the court is not always predictably political. So what we're seeing is that Roberts is willing to sacrifice the policy goals that he might like

to see as a conservative justice in order to protect the court from being seen as partisan. So his institutional instincts are outweighing his judicial ones. That's true so far as it goes. But bear in mind that these issues will come back to the court. And there's a difference between sacrificing a goal entirely and kicking that goal down the road a little bit. One thing that is brand new for John Roberts with the departure of Justice Kennedy is he has taken the median justice role, the center role, the people sometimes call it the swing justice role. He is, in effect, the deciding vote in lots and lots of contested cases. That hasn't been the case. It's been 80 years since the

Chief Justice was also the swing justice. So what Roberts has, in a way, is an excess of power. He has these four conservative allies raring to go, and his job is to kind of tap the brakes, not to change the direction of the vehicle, but to tap the brakes and go slow and try to do both things at once, achieve conservative outcomes without doing harm to the court's prestige. So what you're describing is a question of pace, not where the court will ultimately go. Roberts knows that this court, if left to its own devices right now, given the composition of judges, would dramatically lean right in its ruling. And he's saying, yes, we'll get there, but we'll get there slowly,

and that there's plenty of time. So what, if anything, does the Louisiana decision that Roberts decided last week end up telling us about the decision everyone ultimately anticipates, which is how this court, led by this chief justice, will rule on a challenge to Roe v. Wade, to abortion rights themselves in this country. It tells us very little. If John Roberts

were confronted squarely with the question of would he vote to overrule Roe v. Wade if he was forced to decide that question, I think he would vote to overrule Roe v. Wade. So maybe what I'd say is the Louisiana order does tell us that he wants to move slow and put off the day of confronting the core question of do you overrule Roe v. Wade? And the answer to will John Roberts vote to overrule Roe v. Wade is not yet. vote to overrule Roe v. Wade is not yet. But the day may come. I don't think it comes next year.

I don't think it comes the year after. But somewhere down the line, somewhere in the relatively near term, five years from now, there's a distinct possibility that the court hears that case and the current five-justice majority transforms American life by doing away with Roe v. Wade. Adam, thank you very much, as always. Thank you very much, as always. Thank you, Michael. We'll be right back.

Here's what else you need to know today. On Monday night, House and Senate negotiators reached a tentative agreement to avoid another partial government shutdown when federal funding runs out at the end of the week. The agreement would provide $1.4 billion for physical barriers at the southern border, a figure far lower than the $5.7 billion demanded by President Trump. During the negotiations, Democrats backed down from their demand to tightly limit the number of migrants who can be detained by federal authorities at any given time, a subject that had led to an impasse over the weekend. The congressional negotiators say they are hopeful that President Trump will sign off on the deal, but do not yet have firm assurances that he will. And on Monday, under pressure from Republicans and fellow Democrats,

a House freshman from Minnesota, Ilhan Omar, apologized for a tweet insinuating that American support for Israel is fueled by money from a pro-Israel lobbying group, AIPAC. Omar, who is Somali-American and one of the first Muslim women elected to Congress, has been far more willing than many of her Democratic colleagues to publicly criticize Israel and to stand up for Palestinian rights. The apology came after the entire House Democratic leadership,

including Speaker Nancy Pelosi, issued a statement condemning her for the tweet sent on Sunday night, which claimed that support for Israel was, quote, all about the Benjamins. But in her apology, Omar reiterated her belief that AIPAC, as well as other lobbying groups such as the NRA, exercise too much power in American politics. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.