December 1, 2022

Chief Justice Roberts, whose middle-ground approach in the abortion decision attracted not a single colleague’s vote, said the court’s role in the constitutional structure must be respected.

“If the court doesn’t retain its legitimate function of interpreting the Constitution, I’m not sure who would take up that mantle,” he said. “You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is.”

David A. Strauss, a law professor at the University of Chicago, said the chief justice’s failed effort to broker a compromise in the abortion case presented him with an opportunity.

“The reaction to Dobbs would give the chief justice a chance to tell his conservative colleagues ‘I told you so’ — when you go too far, too fast, people will see the court as nothing more than the judicial wing of the conservative political movement,” Professor Strauss said. “But I doubt his colleagues would listen.”

Justice Elena Kagan, part of the court’s three-member liberal wing, spoke frequently over the summer, if in general terms, about ways courts can undermine their own authority.

That could happen, she said in New York in September, when it looks as if judges are “an extension of the political process or when they’re imposing their own personal preferences,” adding that the public has a right to expect “that changes in personnel don’t send the entire legal system up for grabs.”

Justice Sonia Sotomayor, another liberal, has echoed the point.

The court has near-total power to decide which cases it will hear, and it often uses that discretion to resolve disputes among lower courts. The court agreed to hear many of the major cases in the coming term despite a lack of such conflicts, an indication that the new majority is pursuing an agenda and setting the pace of change.

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