(CNN) — The dramatic 5-4 Supreme Court action that put the Texas abortion ban in effect at midnight Wednesday establishes that Roberts Court is no longer Roberts Court.
Chief Justice John Roberts disagreed along with three liberal justices in what could be considered the least considered but most momentous case in years.
Since Judge Amy Coney Barrett joined the court last October and lost her position at the ideological center of the court, Roberts has been on the dissenting side in a handful of closed cases. But the abortion controversy in Texas possibly marked its most significant defeat to date.
The court order, released to the media at 11:58 pm ET, puts into effect a law that Roberts, himself a conservative who has consistently opposed abortion rights, described as “unprecedented.” Texas bans abortions after six weeks, and equally important to judicial review, it appears to insulate state officials from lawsuits for their unconstitutionality. Since the Roe v. Wade of 1973, states have been prevented from prohibiting abortion before a fetus is viable, that is, it can live outside the woman, approximately between weeks 22 and 24.
Appointed in 2005 by former President George W. Bush, Roberts has warned over the years of the importance of public trust in the court and has tried to prevent the court from moving too quickly against abortion.
Roberts has continued to express a version of the mantra he offered during his confirmation hearings 16 years ago: that judges must avoid a “shakeup” in the American legal system.
Wednesday night’s order, issued with just three days to spare, represented nothing less than a shock and an assault on a woman’s constitutional right to terminate a pregnancy in its early months.
The order puts into effect a ban on abortion that is clearly unconstitutional under previous rulings and that was written to evade judicial review. Texas “essentially delegated enforcement of the law … to the general public,” Roberts wrote in dissent, because it allows private citizens to bring cases against anyone helping a pregnant woman seeking an abortion.
Until recently, the Chief Justice has generally kept a tight grip on the direction of the court. The Texas controversy could herald a new dominance of far-right judges.
Anticipation for the reconstituted Roberts Court leadership, including reproductive rights, was already building before the Texas conflict emerged on the national scene. Right-wing judges had been pushing for a reconsideration of the abortion rights rulings, and earlier this year the court announced that it would soon review a Mississippi abortion ban tied to 15 weeks of pregnancy. That case is likely to be heard in oral arguments later this year and resolved in June 2022.
Roberts’ views and his ability to produce any type of consensus decision will be put to the test in that case, as well as in other cases from 2021-2022 sessions on issues that traditionally divided the court, such as gun control and financing. public religious schools.
It is no longer the fifth vote on abortion
In the Texas dispute, the three court liberals, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, also disagreed. Those three judges have consistently affirmed the right to abortion, as first stated in the Roe v. Wade from 1973 and strengthened through the years of precedent.
Roberts, on the other hand, was long on the opposite side of the battles for reproductive rights. He began his legal career in Washington in the Reagan administration and helped advance the right-wing anti-abortion social agenda.
Last year, when judges heard a dispute over abortion in Louisiana, Roberts voted for the first time to repeal an abortion regulation. It provided the crucial fifth vote, at the time with four liberals (including Ruth Bader Ginsburg), to invalidate a strict Louisiana accreditation law for doctors who perform abortions.
The Louisiana law was similar to a measure that the Supreme Court struck down in Texas four years earlier. Roberts disagreed in that 2016 case, but felt bound by court precedent in the 2020 controversy.
This week, Roberts no longer had the fifth deciding vote. The new conservative majority is made up of Barrett and Justices Neil Gorsuch and Brett Kavanaugh (the first two appointed by Trump) and Justices Clarence Thomas and Samuel Alito.
And Roberts failed to prevail in one of the nation’s most heartbreaking controversies. Abortion rights provoke a mixture of religious, cultural and economic interests, the fervor of those who believe that life begins at conception and the passion of activists for the autonomy and personal choice of women.
Abortion is a perennial Topic A in presidential campaigns and Congressional elections, and has long been a high point of confirmation battles for judicial nominees.
In the Texas case this week, Roberts argued that it was better to block the law and preserve the status quo, while the courts weighed whether the Texas legislature acted correctly in protecting public officials from liability of the law, essentially leaving it in the hands of private citizens. He said that difficult arguments deserved a full briefing and oral arguments.
But the clever, tactical, and usually winning Chief Justice failed to persuade even one member of the far-right to join him in those arguments.
The conservative majority said the health clinics challenging the law had not sufficiently demonstrated that they would be harmed by the new law that came into effect.
“In reaching this conclusion,” wrote the majority, “we emphasize that we do not intend to definitively resolve any jurisdictional or substantive claim in the applicants’ claim. In particular, this order is not based on any conclusion about the constitutionality of the law. Texas.”
George is Digismak’s reported cum editor with 13 years of experience in Journalism