(PresidentialHill.com)- If Chief Justice John Roberts votes against overturning Roe v. Wade, it would be the latest example of the George W. Bush choice disappointing conservatives.
Roberts did not sign Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, which Politico leaked Monday night. If confirmed, the ruling would overturn the historic 1973 ruling establishing federal abortion rights.
Without Roberts, it would be a 5-4 vote. He has positioned himself as the high court’s swing vote.
Roberts hinted at a compromise during oral arguments months ago, a compromise that would sustain a reduced version of Roe. Where the court would come down in its conclusion remains to be seen.
Observers of the Supreme Court will not be surprised by Roberts’ absence. For seven years, Roberts irritated conservatives by voting to maintain President Obama’s primary health-care reform statute, the Affordable Care Act. In NFIB v. Sibelius, he argued that the law’s non-insurance penalty constituted a tax that Congress may charge.
In 2016, Roberts sided with the left-wing and declined to stop an EPA rule restricting mercury and other harmful pollutants from coal-fired power plants. Conservatives criticized the verdict for coal plant closures, job losses, and rising energy bills.
Deferred Action for Childhood Arrivals (DACA), often known as the “Dreamers Act,” was upheld by the Supreme Court in 2020. Obama started the program eight years earlier after Congress failed to adopt the Democrats’ proposal to provide amnesty to illegal immigrants brought to the US as youngsters. He ended the program and told Congress six months to find a solution, which they didn’t.
The Trump administration hoped a win would push Democrats to negotiate DACA. Mr. Roberts, who authored the majority decision ruling against Mr. Trump, agreed but said the Trump administration had failed to contemplate what would happen to the 700,000 DACA recipients.
In 2020, Roberts dissented from a crucial judgment upholding a Texas statute banning abortion beyond six weeks.
He joined the majority in declining to hear a high-profile case where a transgender teenager was denied access to his preferred school restroom. It upheld a lower court judgment in favor of the youngster and was hailed as a triumph by LGBTQ activists.
He has also joined the court’s left side in criticizing the conservative majority’s handling of emergency petitions, dubbed the “shadow docket.” A Trump-era Clean Water Act regulation that President Trump’s emergency order temporarily reinstated reduced federal safeguards for streams and wetlands.
Roberts and the liberal wing accused the conservatives of utilizing the emergency docket, not for crises.
Roberts, who has tended to vote conservative, resents that politics influences the court’s work. Roberts offered a rare rebuke in 2018 after Trump called a lower court judge who had ruled against Trump’s refugee program “an Obama judge.”
“We don’t have Obama, Trump, Bush, or Clinton judges,” Roberts remarked. “We have many devoted judges trying their best to treat everyone equally.”
In the 2020 term, Roberts voted with liberal Associate Justice Stephen Breyer 66% of the time and conservative Associate Justice Clarence Thomas 65%.
In an interview with the Constitutional Accountability Center, Ilya Shapiro of the Cato Institute said that Roberts has neither moved left nor evolved. Roberts is not becoming a swing vote like former Justice Anthony Kennedy. Essentially, Roberts uses procedural authority to affect the court’s final decisions.