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What We Lose as John Roberts Is Sidelined on the Court (Slate)

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What We Lose as John Roberts Is Sidelined on the Court – By Dahlia Lithwick (Slate) / July 29, 2022

Behind any concept of compromise is the notion of humility.

New reporting from Joan Biskupic at CNN this week confirms what many court-watchers suspected happened around the leak of the draft opinion in Dobbs v Jackson last May: Chief Justice John Roberts was privately lobbying his fellow conservatives—particularly Justice Brett Kavanaugh—to save the core holding of Roe v Wade while ruling on the challenge to Mississippi’s abortion ban. While Roberts ultimately failed to persuade any of the conservative justices to pump the brakes on overturning the nearly fifty-year-old right to terminate a pregnancy, as CNN sources confirm, the leaking of the opinion made any Hail Mary efforts impossible. His internal diplomacy tactics “were thwarted by the sudden public nature of the state of play.” The leak, in other words, served to preserve the preexisting 5-4 battle lines that fell into place after Dobbs was argued.

This certainly seems to confirm that the side that benefitted most from the leak was the side that won in Dobbs, a theory that was bolstered when the Wall Street Journal’s editorial page leapt into the fray—even before Dobbs was leaked—with an editorial on April 26 warning that Roberts, who has famously worked the internal levers in crucial cases in years past, “may be trying to turn another Justice now.” Conservatives evidently knew what Roberts was attempting to do and were warning him to stop. It thus served their interests both to leak the opinion, and then to try to press Roberts to issue the final decision even before the dissents were written. We may never know the truth about who leaked—the court’s internal leak investigation seems to have gone… away. Which means we may never learn more about what happened or why.

In the absence of information, we are left to conclude that the chief justice has swiftly lost his superpowers of persuasion and deal-brokering, and, as a consequence, he has utterly lost his court. This is both sad, in a sense, and unsurprising. The moment Amy Coney Barrett was seated, the chief became essentially irrelevant to the vote tallies. This past term, and the new CNN reporting, have simply confirmed that.

But one more observation is perhaps warranted before we leave Roberts in the rearview mirror, waving sadly at his legacy, which may ultimately prove to be less that of John Marshall than John Stamos. What the conservative legal movement most loathes about John Roberts, what makes him more hateful and treasonous in their eyes than any living conservative, is that he was transactional, a compromiser, a doer of deals. On rare occasions—mostly those on which History beckoned—he could be in play. That was intolerable to conservatives who could brook no compromise. Perhaps ironically, that is precisely the quality that eventually most infuriated liberals about Justice Stephen Breyer. He too believed in compromise, in making concessions, in subordinating personal goals for the good of the country, or the court. By the end, it just read to most progressives as appeasement. In much the same way Roberts’ behavior read to conservatives.

CONTINUE > https://slate.com/news-and-politics/2022/07/lose-john-roberts-humility-court-compromise.html

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