Amid the emotions and the political rhetoric surrounding the Supreme Court’s overturning of Roe v. Wade, a particular point deserves more attention than it gets.
Chief Justice John Roberts voted to uphold the Mississippi law reducing the period in which abortion would be lawful, while rejecting the overruling of Roe v. Wade. So the vote was 6-3 for the case itself, but the court overturned Roe by a 5-4 margin. America should take note of Roberts’ opinion. He summarized it by saying
Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks. A thoughtful Member of this Court once counseled that the difficulty of a question “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” … I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.
This opinion raises three points. First, Roberts acknowledges uncertainty in his mind, and the “difficulty” of the abortion question. Thus he keeps his pronouncement within his competence and the court’s duty – constitutional analysis – and minimizes his reach beyond that.
Second, he maintains his well-known judicial restraint, to decide “only what is necessary to the disposition of the immediate case.” Whether or not the Roe decision itself reflected that discipline, his stance is principled and independent of the political issue at hand.
Third, his respect for the difficulty of the issue and to the limits on his own role amount to a deference to public discourse. It is overall an ugly discourse today, but it cannot be improved by any formal body, no matter the trappings of ordained wisdom. We are all just people, and even the Supreme Court, in all its legal expertise, is limited to that realm in its authority.
For some time, it was hard to find the court’s vote count laid out in the news. Surely one reason for the scarce and delayed coverage is that it’s complicated, and the media dislikes explanations of more than one line. Also, the least complexity serves neither of the partisan arguments. A CNN analysis piece three days afterward cited Roberts as losing to the conservatives. So does a Wall Street Journal op-ed. The media, it seems, agrees with the politicians that the bottom line is “which side won.”
So voices on the left variously call to codify abortion rights in Congress, or to expand the Supreme Court. Justice Clarence Thomas wants to apply his view that “due process” has been expanded to confer non-existent “substantive” rights, to reconsider rights to gay marriage and contraception. In short, “both sides” are dead set on actions that will provoke the other’s reaction, which will only extend and deepen polarization and animosity in public discourse.
Roberts lost this particular point of judgement. And had he won his point, it may well be true that he would only have “put off the day” when Roe was directly up for a yay-nay vote. His deepest motive, it has been said, is to preserve the Supreme Court’s status as generally accepted arbiter of Constitutionality of the laws. Whatever one’s politics or emotional commitments, America needs a voice focused on consensus. All too few in public power are trying to preserve space for it, and all too few show any interest in it as they pursue office. If more of us look for this motive as we choose our leaders, we just might save America. Every effort matters, and Chief Justice Roberts’ deserves recognition and emulation.