The missing statesmanship

Chief Justice Roberts is a practitioner judicial statesmanship that is occasionally difficult for an outsider to understand. Most famously, Roberts switched his vote on the constitutionality of Obamacare in the face of President Obama’s intimidation. It was a sorry performance that invited more of the same from those for whom it’s all politics.

In Dobbs, Roberts’s statesmanship resulted in an eccentric concurring opinion that none of his colleagues on either side of the case found persuasive. University of St. Thomas Distinguished University Chair & Professor of Law Michael Paulsen puts it this way in a Public Discourse column declaring the magnificence of the Court’s opinion by Justice Alito (I have split one long paragraph in two):

Chief Justice Roberts concurred in the judgment only, making six votes to uphold Mississippi’s ban on abortion after fifteen weeks. But the rest of his opinion is bizarre. Obsessed with a desire to rule as narrowly as possible, Roberts would have overruled Roe and Casey insofar as they invented a plenary right to abortion up the point of viability—that much is all to the good, and important. But, on the ground that it was not necessary to decide anything more, Roberts would have preserved Roe’s “right to choose” abortion so long as there was some “reasonable” opportunity to have exercised that choice at some (unspecified) earlier point in pregnancy—or at least left that question open for now.

This is contrived. It is the fetish of restraint, without common sense. Taken seriously, it would invent (or preserve) a judicial abortion right and draw a brand new, arbitrary, ad hoc, unspecified line—exactly what Roberts condemned Roe and Casey for doing—on the ground that “judicial restraint” requires it. It is as if an Olympic sprinter determined that he should always run races taking only two-inch strides, as a matter of his own practice. Little wonder that he was left behind in the dust and that no one followed him. I have long resisted the common criticism of Roberts as not being fully principled. He has done some great work. But not here. This opinion is out to lunch.

It seems to me that the statesmanship that is required to protect the Court as an institution at this time is the kind that would let the Democrats know that intimidation, bullying, and threats of assassination are not going to deter the Court from doing its duty. Roberts should have exercised his discretion to join the majority without further ado. He is cutting the salami too damn thin.

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