Is the chief justice moving left?

In the latest episode of Amicus, Dahlia Lithwick welcomed Jeffrey Toobin from New York and New York University School of Law professor Melissa Murray to discuss last week’s big abortion decision. June Medical Services LLC v. Russo, in which Chief Justice John Roberts decided to overturn Louisiana’s restrictive abortion law Murray and Toobin debate what this means for Roberts’ jurisprudence and whether it is moving to the left. Read a portion of their conversation, which has been edited and condensed for clarity, below.

Dahlia Lithwick: in June MedicalRoberts was unwilling to pass judgment on whether Louisiana’s abortion law was pretextual. His problem with Louisiana was hutzpah, which the 5^th The US and Louisiana Circuit Court of Appeals annulled 2016 Comprehensive women’s health and that’s not appropriate, is it?

“Something is going on at Roberts’ jurisprudence.”

– Jeffrey Toobin

Jeffrey Toobin: John Roberts could have voted either way. When they took June MedicalWhy would it take exactly the same case four years later, aside from reversing it? That was my thought. So I was surprised by the result. John Roberts, for the first time in his 15 years on the Supreme Court, said: State, you cannot do this to prevent women from aborting. And that, for me, was amazing. I think of John Roberts as a dedicated pro-life justice, and he didn’t vote in the pro-life position. If you wanted to pass the abortion regulations, you could have voted to affirm the 5^th Circuit. And did not do it. And that to me was bigger than the terms he used in his opinion.

You’re right that you can’t separate this from his DACA dropout and Title VII dropout. Clearly, this is not the Chief Justice that we saw even this time last year.

Toobin: All of us who cover the field always ask us: Well what do they really think? And what is happening? And the honest answer is: Who the hell knows? I do not know. I have no access to John Roberts’ most intimate life. But here are three hugely consistent cases. We often speak of these cases in abstractions. These three cases have a great impact on people’s lives. It is now illegal throughout the United States to fire gay people just because they are gay. That was not true a month ago. Seven hundred thousand dreamers, if that were the other way around, would have been deported today, and they are not. And now Louisiana will have seven abortion clinics instead of one if that case had gone the other way. That is simply huge. And John Roberts voted with the Liberals on all of them. Like I say, I can’t explain what’s going on in your head, but that’s not the John Roberts who wrote Shelby County, killing the Voting Rights Act. Something is happening in your jurisprudence. I don’t think he’s becoming Ruth Bader Ginsburg, but he doesn’t seem like the same John Roberts he was two, five, or ten years ago.

Melissa, I want you to react. Mainly because I’m looking at your face in the Zoom and it’s very expressive.

Melissa murray My face is not cold. So I can’t play poker. So Lee Epstein of the University of Washington at St. Louis and Andrew Martin and Kevin Quinn have talked about this idea of ​​judicial drift: that over time judges move more to the left. And maybe that’s something that’s happening here, but I don’t think that’s it. I think John Roberts plays a long game. He is a cunning and cunning person, and I think he is playing a long game. And I don’t want to take anything away from those victories in Title VII or DACA cases, but I want to point out that those are not overly exaggerated and progressive victories. So in BostockIn the case of Title VII, John Roberts joins what is a very direct textual opinion that achieves a progressive result. But the logic and the implemented methodology are quite conservative. We don’t get into the heads of the legislators. We simply look at the words on the page and apply the simple meaning of those words. That is a very direct methodology, even if it produces a progressive result. And at DACA, the superior judge is not endorsing DACA; You are not saying it is a good idea. He is simply saying that the Trump administration, as in many other cases, failed to dismantle this program in the manner required by law. Go back and dismantle it the right way. It happens that it is unlikely to be dismantled because this is an election year. But leaving that aside, if the Trump administration prevails in November and returns to power in December, DACA will be dismantled appropriately, following the Administrative Procedure Act.

And here you have a similar dynamic. And again, I go back to DACA’s opinion, because I think they are both one piece, right? Go back and do better. You cannot present us with a law that is practically identical to a law that we abolished just four years ago and that nothing has really changed. And it is not enough to say that Louisiana is markedly different from Texas. This law, we know, has no medical benefits. Go back and find a better law that is different, that doesn’t match the precedent we decided four years ago, and then you will see the John Roberts that you have known and loved for generations. And most importantly, a John Roberts who, even as he hands this partial victory over to him, in the text of this opinion, actually strips the 2016 decision of all its essence. This is like Caseywhat gutted Roe and left a shell of the Potemkin people of abortion right in its place, stripped it of its substance. Here, Comprehensive women’s health It nominally survives, but the analysis of benefits and burdens no longer exists. And the precedent that John Roberts really stands for here is the Casey precedent, which was honestly a victory for opponents of abortion because it gave states broad freedom to legislate on the existence of abortion.

“I think John Roberts plays a long game. She is a cunning and cunning person, and I think she is playing a lot game.”

– Melissa Murray

Toobin: But Melissa had a choice in all three cases. There were three judges in the Title VII case, and four judges in the DACA case, and four in the abortion case, who said: It’s fine like this and you don’t have to redo it. You don’t have to remake DACA and it’s okay to fire people because they’re gay, because Title VII doesn’t say what you say. So, it gives a very persuasive analysis of Roberts’ views, but he had a choice and went in the liberal direction. And that, to me, is just amazing.

Whatever John Roberts is, he’s not a Trumpist, is he? Here it is, touching the nose of Bill Barr’s Justice Department over and over, and I think that’s interesting to me. Whatever it is, it’s not Samuel Alito. He is not Clarence Thomas. Alito runs to Kermit Gosnell’s place. Here is Neil Gorsuch talking about fetal tissue floating in clinics, right? Nothing of that. This is not an emotional opinion.I hate abortion. We are going to use this fleeting moment of Trumpism to reverse everything that happened since Warren’s court.. Roberts is not that.

Murray I do not disagree with you, but I am going to propose a provocative counterfactual. What if, in 2005, when John Roberts was nominated to replace Sandra Day O’Connor, what would happen if Chief Justice William Rehnquist had not died and then John Roberts was not proposed to be his replacement as Chief Justice , and instead was in the Alito? seat as associate judge? I think you get a very different John Roberts. One who is more willing to live and die for those conservative principles of the legal movement. In the office of Chief Justice, John Roberts is a very different animal. Someone who plays a long game and is a smarter operator who recognizes that this is an election year. The country is incredibly polarized. It seems that the country is about to explode with racial division.

Is this the time to unleash a crisis on abortion rights? Probably not. So, I think you are institutionally thinking about what it means at the moment to defend this law that is so similar to a law that we have just repealed, that to do so would be to describe the court as obviously obviously partisan and politicized, which is something that a and again, we have seen that he does not want to. He is the most unconditional protector of the institutional integrity of the court. And I think that comes out in this opinion.

Toobin: To which I can only reply: “Good. I’m glad you feel that way.

Murray My uterus breathes a sigh of relief, but it’s also convulsing, waiting four years from now when maybe we’re out of the woods, maybe Donald Trump is still president, maybe there’s another vacancy on the court, and you’re 6-3 majority, and suddenly you don’t have to look like an institutionalist anymore because this doesn’t seem so tense.