The Chief Justice’s Dissents Confirm He’s Not In Charge. Let’s Just Call It the “McConnell Court”

Posted in: Constitutional Law

Last week’s dissent by Chief Justice John Roberts in Louisiana v. American Rivers is part of a trio of consequential Roberts dissents in the Supreme Court’s current term. They remind us that “The Roberts Court” no longer describes where control of the Court resides.

One might now call it the Kavanaugh Court or the Alito Court or even the Thomas Court, inasmuch as Justice Clarence Thomas is now the senior member of the Court’s right wing, and thus has the power to decide who will write for the Court whenever the Chief is not in the majority.

But maybe we should just dub it the “McConnell Court.”

Few can forget Mitch McConnell’s refusal, as then-Senate majority leader in March 2016, to hold any hearing at all, much less a Senate vote, on President Obama’s Court nomination of Merrick Garland eight months before the 2016 election. His excuse? The upcoming presidential election was too close for any nominee to be fairly considered.

That was followed by the hypocrisy of McConnell’s ramming through the confirmation of Justice Amy Coney Barrett one week before the 2020 election.

But for those two exercises of naked power, all three of the decisions described here would have gone the other way, with Chief Justice Roberts in the majority every time.

In Louisiana v. American Rivers, Roberts joined the dissent, which strenuously protested the majority’s use of its “shadow docket” to reinstate, without briefing or argument, a Trump administration anti-environment rule. It constrained the authority of states and counties to restrict dangerous pollution of local waterways. As the four dissenting Justices demonstrated, there was no “emergency” to justify the Court taking action without full briefing or argument.

On February 7, Roberts again joined a four-Justice minority to dissent from the majority’s “shadow docket” decision in Merrill v. Milligan. It allowed an Alabama redistricting map to go into effect, notwithstanding a lower court’s painstaking, 217-page decision finding that the state’s map discriminated against Black voters in plain violation of the 1965 Voting Rights Act.

Last, on September 1, 2021, in Whole Woman’s Health v. Jackson, in yet another 5-4 decision, the Chief Justice’s dissent objected to the majority’s decision to leave in effect Texas’s infamous vigilante-enforced anti-abortion bill.

In sum, the Chief Justice does not carry sway in decisions on central issues such as a woman’s right to choose, voting rights, or protecting the environment—or, for that matter, on the process of briefing, argument, and deliberation that makes the Supreme Court a court worthy of the name.

The indications are that the coup de grace to Roberts’s Court leadership may occur in Dobbs v. Jackson Women’s Health Organization, due for decision in the next three months. The issue in Dobbs is the constitutionality of Mississippi’s statute banning abortions after 15 weeks of gestation.

As all who handle Supreme Court litigation know, it is settled practice that “the Court will not consider an issue unless it is fairly comprehended by the questions presented.” In Mississippi’s June 2020 petition for certiorari, the state wrote unequivocally: “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey.”

But in a classic bait and switch, once certiorari was granted, Mississippi changed its tune: “Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. . . . [T]his Court should overrule those decisions.”

At the December 1, 2021, oral argument in Dobbs, the five most conservative Justices seemed to side with Mississippi’s head-on assault.

By contrast, Roberts seemed inclined to decide only the case originally presented. The Chief Justice told the advocate for the abortion providers challenging the Mississippi law, “I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability. It is the standard that the vast majority of 15 other countries have.” And he asked, “Why is 15 weeks not enough time?”

One could reasonably doubt the plausibility of a constitutional rule equating “viability” with whether the woman had “enough time” to decide about continuing or terminating her pregnancy, rather than with the ability of a fetus to survive outside the woman’s body. But at least Chief Justice Roberts’s search for some such rule arguably followed his own words that, “If it is not necessary to decide an issue to resolve a case, then it is necessary not to decide that issue.”

Judicial restraint in constitutional adjudication—a practice that the Chief Justice has at times honored in the breach—applies two venerable principles of traditionally conservative jurisprudence. Justice Louis Brandeis laid out the first in his concurring opinion in Ashwander v. Tennessee Valley Authority: “The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”

The force of that rule increases when a broader rule violates the core principle of stability and predictability in the law, stare decisis.

We will know in the next three months whether Roberts can rustle together a Dobbs majority for those principles, and wrest back for himself leadership of the Court.

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