Legal experts reveal why the dark side of Chief Justice Roberts isn't going anywhere

Social conservatives are furious with Chief Justice John Roberts over some recent rulings, claiming that he has been too sympathetic to abortion and LGBTQ rights. But legal experts Jeffrey Toobin and Elie Mystal, in recent articles, argue that Roberts hasn’t really become any less conservative. And both of them — Toobin in The New Yorker, Mystal in The Nation  — explain why it is wrong to start thinking of Roberts as a moderate or a centrist, let alone a liberal.

“Roberts will never be a liberal, but he’s no moderate either,” writes Toobin, who is often featured as a legal analyst on CNN. “His 2013 opinion in Shelby County v. Holder, which crippled the Voting Rights Act, will haunt his reputation and the nation forever. He will probably also vote to uphold some abortion restrictions in the future. This week, too, Roberts wrote a dismal opinion allowing public subsidies for religious schools, further lowering the barriers between church and state.”

But Toobin also writes that although Roberts is right-wing politically, he isn’t without nuance — and he cites Roberts’ ruling in June Medical Services v. Russo as an example. That decision, handed down earlier this week, struck down a Louisiana law that required doctors who perform abortions to have admitting privileges in a local hospital. Toobin notes that some recent articles view Roberts’ June Medical ruling as “a move in a multi-dimensional chess game to allow other restrictions — and ultimately, to overrule Roe v. Wade.”

But Toobin disagrees.

“If the chief justice wanted to uphold restrictions on abortion, he would have voted to uphold restrictions on abortion,” Toobin asserts. “He did the opposite and struck down a law that would have curtailed access to abortion in Louisiana.”

Toobin adds, “It is true, of course, that Roberts has not suddenly turned into Ruth Bader Ginsburg. Four years ago, the chief justice voted to uphold abortion restrictions in Texas that were virtually identical to the ones that he voted to strike down in Louisiana. As he noted, in his opinion concurring in the judgment this week, he stands by his 2016 vote, where he was on the losing side, 5–3.”

Toobin goes on to write that while Roberts is clearly conservative, he isn’t a mere puppet of President Donald Trump or Senate Majority Leader Mitch McConnell.

“I don’t pretend to know what’s in Roberts’ heart,” Toobin writes, “but I can see what’s clear: that he is dissociating himself from key parts of the conservative legal project that Trump and McConnell have done so much to foster.”

Mystal, meanwhile, emphasizes in The Nation that the lesson to be learned from Roberts’ recent rulings isn’t that the chief justice has moved to the left — it’s that Trumpian Republicans and their lawyers are so far to the right.

“Is John Roberts becoming a ‘moderate?’,” Mystal writes. “Is he turning into another ‘failed conservative,’ like former justices John Paul Stevens, David Souter and Anthony Kennedy — who were all Republican appointees that ended up siding with progressive majorities in key cases? No. Roberts is the same hardcore Republican in robes that he’s always been. It’s not that Roberts has shifted to the left; it’s that the cases he’s being asked to decide have lurched so far to the right that Roberts cannot follow where the conservatives want to go.”

Essentially, Mystal is arguing that Roberts hasn’t left right-wing jurisprudence — right-wing jurisprudence has left him.

“The cases conservative lawyers feel empowered to bring to the Supreme Court since alleged attempted rapist Brett Kavanaugh was installed as a fifth conservative vote are madness,” Mystal asserts. “Kavanaugh arrived on the Court, and suddenly, every conservative zealot with a few dollars and a legal pad decided to shoot their shots. The way to understand this term is to imagine Roberts banging on a gavel and yelling ‘order’ while his conservative colleagues try to rewrite the Constitution with a sharpie. Roberts is entirely willing to adopt the hardcore Republican agenda; he’s just unwilling to adopt harebrained conservative legal theories to get there.”

According to Mystal, far-right lawyers are so “harebrained” at this point that they expected Roberts to automatically join them in June Medical despite a similar High Court ruling four years earlier.

“The problem with the Louisiana law is that the Supreme Court struck down a nearly identical law in Texas in 2016,” Mystal explains. “That case was called WholeWoman’sHealth v. Hellerstedt. I cannot emphasize enough that coming to the Supreme Court with the same law the Supreme Court struck down four years earlier is ludicrous…. Conservatives thought they had enough votes to ignore precedent. They did not.”

Mystal goes on to say that Roberts still might welcome a “frontal challenge to Roe v. Wade.”

“June Medical does not show that Roberts is a secret defender of women’s rights — it shows that the other four conservatives on the Court are ideologically dedicated to ending abortion by any means necessary,” Mystal argues. “When Kavanaugh said that he respected Supreme Court precedent, he was lying.”

Roberts, according to Mystal, is still a hardcore conservative even though he isn’t fanatical about it.

“John Roberts is not a failure of the conservative movement,” Mystal writes. “He’s not a ‘squish’ or a RINO. He’s a rock-ribbed Republican jurist who is doing the long and patient work of defending Corporate America and the white male patriarchy. He’s just not a raging fanatic.”