The chief jus­tice is try­ing to save the GOP from it­self

The Washington Post Sunday - - SUNDAY OPINION -

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.

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