Earlier today, to the surprise of none, the Supreme Court released its opinion in Dobbs v. Jackson Women's Health Organization. The court overruled Roe v. Wade, 410 US 113 (1973) and ruled that the United States Constitution does not prohibit states from regulating or prohibiting abortions, even as soon as one day after conception. The majority opinion, in which five justices joined, is one of three constitutionally significant opinions that the Alito court issued this term.
"The Alito court?" you say. "Not the Roberts court?" Don't we customarily refer to the Supreme Court by reference to the chief justice, such as "the Rehnquist court" or "the Warren court"?
Well, yes, until now. Pundits have today focused on the majority opinion, written by Justice Samuel Alito, and the dissenting opinion, a joint production of Justices Breyer, Sotomayor, and Kagan. The two important opinions in the case, however, are the concurring opinion of Justice Clarence Thomas and the sort-of-concurring opinion of Chief Justice John Roberts. Justice Thomas's opinion points the way toward returning the United States to the 18th century. Chief Justice Roberts's opinion reveals that the Supreme Court is no longer the Roberts court; it is the Alito court.
Why? Let's revisit the history of this case. Dobbs is a Mississippi official. Jackson Women's Health Organization provides abortions in Mississippi. The state passed a law that criminalized abortions from 15 weeks onward, with an exception for medical necessity. Jackson sued the state to enjoin (prevent) the state from enforcing the law, citing Roe v. Wade as binding precedent. Jackson won at the trial level and before the appellate court. The state appealed to the Supreme Court, which granted certiorari (agreed to hear the case) on the narrow question of "whether all pre-viability prohibitions on elective abortions are unconstitutional." Mississippi told the court that it should "reconsider the bright-line viability rule," and that a decision for the state would "not require the Court to overturn" Roe v. Wade.
Only after the Supreme Court agreed to hear the case did Mississippi change its argument, pressing the court to hold not just that this specific law was constitutional, but that the court should overrule Roe v. Wade entirely. The court did so. This fact brings us to John Roberts's opinion.
Chief Justice Roberts concurred in the result: that is, he agreed with the majority that the law was constitutional. He parted with Justice Alito and his cohort, however, when they struck down the rule of Roe v. Wade. He agreed with the majority that the viability test of Roe v. Wade "should be discarded," but wrote that a woman's right to terminate her pregnancy -- a right that he specifically acknowledged -- "should extend far enough to ensure a reasonable opportunity to choose, but need not extend any further - certainly not all the way to viability." He then cited a longstanding principle of judicial restraint: the court should decide only what is necessary to its decision, but not more. "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." [The italics are his.] To continue to quote the chief justice: "The Court's opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us."
What can we infer from Chief Justice Roberts's opinion? I think it's fair to conclude that he attempted to drag his five colleagues back from their full-out repudiation of Roe v. Wade, not because of the merits of the case but because of how the judicial process is supposed to work. He failed. Not a single justice joined him. We know from Justice Alito's draft opinion where the majority started from, and we know from Justice Alito's final opinion where the court ended up. Chief Justice Roberts's concurrence in holding the law valid coupled with his refusal to overrule Roe v. Wade entirely means that the court no longer belongs to him. It belongs to Samuel Alito. John Roberts is now merely a passenger along for the train ride, praying that the engineer doesn't speed around a sharp curve.