Chief Justice John Roberts may have dropped a major clue as to what the Supreme Court might do about Roe v. Wade by penning the majority decision handed down Thursday in a completely unrelated case.
Roberts, the George W. Bush appointee who has frustrated conservatives by often siding with the court’s liberal wing, wrote for the 6-3 majority in Cummings v. Premier Rehab Keller, a case involving recovery of damages under ACA or the Rehabilitation Act of 1973. Court watchers say that means Roberts, who already wrote two other majority opinions earlier in the current term, likely won’t be writing for the majority in the pending Dobbs v. Jackson Women’s Health Organization.
“Roberts’ authorship of this opinion suggests (but does not guarantee) that he is NOT writing the abortion decision,” tweeted Bloomberg News Supreme Court reporter Greg Stohr. “Otherwise, he would have two majority opinions from the December sitting and some other justice would have none.”
Other pundits were more certain.
“Oh wow, the Chief Justice isn’t writing Dobbs. *gulps*,” tweeted Real Clear Politics Senior Elections Analyst Sean Trende, later explains via another tweet that “Justices almost always write one opinion” per sitting.
“Great News! The chance of Roe being overturned just went up,” tweeted former South Carolina Republican senate candidate Tim Swain. “It is highly likely that Chief Justice Roberts will NOT write the opinion in the abortion case!”
The Dobbs case involves a Mississippi law that bans abortion after 15 weeks. Lawyers for the state are seeking to overturn Roe v. Wade, the landmark 1973 ruling legalizing abortion, saying the state and federal laws are not compatible.
The Supreme Court term, the first part of which is divided into a series of two-week “sittings” where arguments are heard, begins in October and usually ends in late June or early July, with orders and opinions typically announced in May and June. In the current term, Roberts had already delivered the majority opinion in two cases, Mississippi v. Tennessee and Ramirez v. Collier. In the term before that, Roberts only delivered the majority opinion in two cases.
If Roberts doesn’t intend to author the upcoming decision in Dobbs, it could indicate the Court will take a harder line against abortion rights, as the five other Republican appointees are seen as more conservative than Roberts. One would almost certainly be assigned by Roberts to write the majority opinion.
However, other possible scenarios remain. The Wall Street Journal editorial board speculated Roberts could try to recruit one of the conservative justices to join him in a compromise that would preserve the Mississippi law without striking down Roe v Wade.
“He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an “undue burden” on the ability to obtain an abortion,” The Journal wrote. “If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision.