The explosive leak of a draft Supreme Court opinion that would overturn Roe v. Wade signaled the rise of a rightward-moving court that is testing the power of fellow conservative Chief Justice John G. Roberts Jr.
“He is a magnificent lawyer,” Miguel Estrada, who frequently argues before the Supreme Court, told a conference of judges and lawyers last week in Atlanta. “I will be interested to see what he comes up with.”
The conservative Wall Street Journal editorial page made similar points in a recent column that warned Roberts was trying to coax Kavanaugh and Barrett to join him. The right flank of the court is sometimes divided that way, with Thomas, Alito and Gorsuch pushing for aggressive changes in the law, and Roberts, Kavanaugh and Barrett more content to move more incrementally.
The diminished role of Roberts was evident earlier this term in another abortion case, when the court voted 5 to 4 that an unusual law from Texas could not be challenged in federal court before it went into effect. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote. All he needed for his side to prevail was for one of the five justices in the September decision to join him. But in three months from the original decision to the reconsideration, that did not happen.
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