The chief justice is trying to save the GOP from itself
The Supreme Court just handed down a decision illustrating an important truth: Chief Justice John G. Roberts Jr. is not, as many conservatives believe, some kind of traitor to their cause. In his own way, he’s as devoted to the fortunes of the Republican Party as any of the other conservative justices. But unlike Samuel A. Alito Jr. (generally recognized as the most partisan justice on the court) or Brett M. Kavanaugh (who will almost certainly challenge Alito for that distinction), Roberts is playing a longer game: He’s trying to save the GOP from itself.
On Thursday, Roberts sided with the four liberal justices to prevent a Louisiana “TRAP” (Targeted Regulation of Abortion Providers) law from taking effect before the court hears a challenge to it. The Louisiana law was almost identical to a Texas law the court struck down before Justice Anthony M. Kennedy retired. Thus, the four justices who dissented in the Louisiana case were saying not just that the previous decision should be overturned, but that the precedent itself effectively can be ignored even before they overturn it.
Pro-lifers were naturally outraged. But their anger at Roberts is completely misplaced. Roberts, one must understand, voted to uphold the Texas TRAP law in the original case. Which means he will almost certainly vote to uphold the Louisiana law once the court hears it in full. But he doesn’t want to jump into that, as the other four justices on the right did, without making it seem like they’ve considered the issue carefully. If they’re going to eventually uphold the Louisiana law anyway, it’s much better not to be so obvious that they’re just out to destroy abortion rights wherever they can.
And when they do uphold the Louisiana law after a full hearing, that’s what Roberts will accomplish. Rather than repealing Roe v. Wade outright, it’s probably the best way for conservatives to achieve their goal of getting something identical to a repeal while avoiding at least some of the ensuing controversy.
As it stands now, state laws are not allowed to place an “undue burden” on a woman’s right to choose. If the Supreme Court validates the Louisiana law, it will effectively overturn Roe, yet in a way that won’t produce screaming headlines reading “Roe Overturned!” The ruling would be a green light to Republican-run states that the court will judge virtually no burden to be “undue.” The effect — abortion legal in Democratic-run states and essentially illegal in Republican-run states — will be the same.
Roberts knows that with polls showing almost two-thirds of Americans against Roe being overturned, that backlash could be enormous. In short, you could argue that Roberts is actually the most loyal Republican on the Supreme Court; unlike, say, Alito, he knows that if your goal is to destroy Roe and to minimize the backlash Republicans will suffer at the polls, this is how you do it.