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Chief Justice John Roberts: From key swing vote to potential bystander?

Chief Justice John G. Roberts Jr. at the Capitol in 2020. (Matt McClain/The Washington Post)
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Almost seven months after Justice Amy Coney Barrett’s swearing-in, the Supreme Court is set to take on a case that could redefine abortion law in the United States. The court announced Monday that it will review a restrictive Mississippi abortion law that would ban almost all abortions after 15 weeks of pregnancy.

Barrett’s confirmation didn’t just give conservatives on the court a 6-3 majority; it also means Chief Justice John G. Roberts Jr. is no longer as likely to be a swing vote on the court — marking a sudden change to the amount of power Roberts has to steer the direction of the court.

When President Donald Trump made his third and final Supreme Court nomination, putting Barrett in the seat previously occupied by Ruth Bader Ginsburg, the court became more conservative than it had been in more than 50 years. With a conservative majority on the court, Republicans hope justices could make a series of landmark decisions on issues their electorate is passionate about. At the top of that list is abortion rights.

By the time Trump took office, Republicans had succeeded in making the nomination of Supreme Court justices an issue that drives voter turnout in a way Democrats couldn’t. In exit polls conducted after Trump’s election in 2016, one-fifth of voters said court nominations were the most important factor in their vote, and those voters broke for Trump by a 15-point margin.

When Ginsburg died last September, handing Trump the opportunity to make a third nomination and swing the court even further to the right, it became a more urgent issue for Democrats. About two-thirds of Joe Biden supporters said Supreme Court nominees were “very important” to their vote in an August 2020 Pew Research poll, while about 6 in 10 Trump supporters said the same.

But Trump was already on his way to nominating Barrett, a right-leaning justice who gave conservatives on the court what amounts to a majority. That got Republicans excited — and made Democrats nervous — about the possibility of the court making the kind of rulings conservatives have had on their wish list for decades, starting with overturning Roe v. Wade, the landmark abortion case.

The landmark 1973 Supreme Court decision established a woman’s constitutional right to have an abortion. Some Democrats want to make it into law. (Video: Blair Guild/The Washington Post)

Now, the Mississippi law is under the court’s microscope. The law hasn’t gone into effect because of lower-court rulings that say it goes against decades of Supreme Court precedent, including Roe v. Wade. But the Supreme Court has more latitude to revisit such precedents when it is deemed warranted.

“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick Higginbotham wrote for the U.S. Court of Appeals for the 5th Circuit.

The Supreme Court has long declined to take on such cases, often falling back on the precedent set by previous decisions. Under Roberts, even with a 5-4 conservative majority after Trump’s first two nominees, Neil M. Gorsuch and Brett M. Kavanaugh, were confirmed, the court seemed reluctant to take on big, landmark cases — and certainly to challenge precedent on politically sensitive issues. It has been suggested that Roberts aimed to make the court appear less political by avoiding those sensitive issues. Some conservatives have even said he lacks the will to address issues such as abortion at all. But such things could increasingly be out of his hands.

Roberts’s status as a key swing vote was solidified by the 2012 decision he wrote upholding the Affordable Care Act’s constitutionality, in which the individual care mandate was preserved as a tax, a decision that infuriated conservatives.

But his supposed efforts to depoliticize the court were blunted by Barrett’s appointment. In a 6-3 court, Roberts is no longer a swing vote. Even if he were to side with the liberal-leaning justices, they could be outvoted 5-4.

This isn’t the first case that has seemingly made Roberts’s vote potentially less potent — but it has the potential to be the most high-profile (though we have no idea what the court will do with it).

Supreme Court precedent has been the legal principle upholding abortion rights as GOP-controlled states have passed more and more restrictive laws. U.S. District Judge Carlton Reeves wrote in a 2018 ruling that the Mississippi law was obviously intended to test the court system.

“The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote.

It isn’t totally clear how the Trump-appointed justices view Roe v. Wade as precedent, but each was pressed on it extensively at their confirmation hearings.

Gorsuch noted it is a precedent that has repeatedly been reaffirmed. “A good judge will consider it as precedent of the United States Supreme Court worthy of treatment as precedent, like any other,” he said. But that isn’t a promise not to overturn it.

Kavanaugh advised against calling Roe v. Wade “settled law” when working as a White House lawyer during the George W. Bush administration, but he called it “precedent upon precedent” in his September 2018 confirmation hearing.

Under questioning from Sen. Amy Klobuchar (D-Minn.), Judge Amy Coney Barrett on Oct. 13 said there were still challenges and disagreements about Roe v. Wade. (Video: The Washington Post)

Barrett seemed to say during her own confirmation hearing that she does not consider the case “super-precedent” that cannot be overturned.

There are nuances within each answer, and Barrett like the others took care not to tip her hand too much when it comes to cases that could be tried during her tenure. But while Kavanaugh and Gorsuch were willing to say that it’s pretty much settled law, Barrett’s answer was read to leave more wiggle room — the kind that Democrats fear means her vote on any abortion case has already been decided.

The court’s most recent decision on abortion came last year, when Roberts joined what were then four liberal justices to strike down a restrictive abortion law in Louisiana. In concurring with the decision, Roberts wrote that the Louisiana law was similar to a restrictive Texas abortion law that the court had previously struck down. And although Roberts had dissented on the Texas case, he said precedent is what mattered most.

Roberts was clear that he continues to “believe that the [Texas] case was wrongly decided.” But he said the only question facing the court was whether to adhere to the Texas case as precedent, not whether he agreed with the original decision.

Gorsuch and Kavanaugh both dissented in that case, seemingly disagreeing that the Texas decision was sufficient precedent. The court is set to take the Mississippi case, Dobbs v. Jackson Women’s Health Organization, in the term that starts in October.