A new book details how Chief Justice John Roberts lost control of an increasingly conservative US Supreme Court as it moved to overturn the constitutional right to abortion last year.
The book, written by veteran Supreme Court reporter and CNN legal analyst Joan Biskupic and based in part on interviews with unnamed justices, describes conservative disgruntlement with Roberts leading up to the abortion case. The court voted 5-4 to toss out the landmark Roe v. Wade ruling, with Roberts failing to persuade any of his colleagues to join him in a narrower ruling.
Biskupic writes in “Nine Black Robes” that conservative justices “privately complained to me” about Roberts after he cast the key vote in 2020 to block then-President Donald Trump from ending the DACA deferred-deportation program. She also says colleagues thought Roberts “was acting peremptorily” when he imposed a plan to hold 10 arguments by telephone when the pandemic began that year.
Neither Roberts nor any of his colleagues had any immediate comment on the book, which is being released Tuesday.
The Republican-appointed Roberts lost his position as the court’s ideological pivot point in 2020, when liberal Justice Ruth Bader Ginsburg’s death let Trump nominate Justice Amy Coney Barrett. Senate confirmation of Barrett just before the election shifted the court sharply to the right and stripped Roberts of much of his leverage to control the pace of the change.
The account “adds to the sometimes public griping, but other times barely concealed disdain, that the Republican justices have toward the chief,” said Leah Litman, a University of Michigan Law School professor.
The book also says Roberts “upset many court employees” when his administrative team insisted that Ginsburg’s staff clear out of her chambers immediately after her September 2020 burial services. Barrett was confirmed to succeed Ginsburg less than a month later.
Kavanaugh Note
The book says Barrett and fellow Trump appointee Brett Kavanaugh surprised their colleagues when they voted in 2021 to effectively clear a Texas law that banned abortion after six weeks. During arguments, both justices had suggested skepticism toward the law, which used an unusual private enforcement system to evade judicial scrutiny and impose what at the time was the nation’s strictest ban.
The Texas decision was a prelude to the court’s 2022 ruling eliminating constitutional abortion rights, a decision leaked in draft form to Politico more than a month before it was finalized. Biskupic says the leak made Roberts’ efforts to broker a compromise all but impossible, even as conservative justices pressed to have the ruling issued quickly for fear they might lose their majority.
Biskupic also writes that in 2019 Kavanaugh took an unusual step to try to appear conciliatory when the court blocked the Trump administration from including a citizenship question on the census.
Kavanaugh joined a strongly worded dissenting opinion in which Justice Clarence Thomas suggested that US District Judge Jesse Furman was predisposed to question the administration’s motives. Biskupic says Kavanaugh sent Furman a private note to say he didn’t intend to personally disrespect the trial judge.
The book describes a “subtle understanding” between Roberts and now-retired Justice Anthony Kennedy for handling two gay-rights cases in 2017. Roberts provided the needed sixth vote to summarily invalidate an Arkansas law that barred same-sex spouses from both being named on their children’s birth certificates, while Kennedy dropped his resistance to hearing an appeal from a Colorado baker who refused to make cakes for same-sex weddings, Biskupic says.
The court eventually agreed to hear the baker’s appeal on the same day it acted in the birth-certificate case.
