May 9, 2022

There’s a report by the Washington Post that Chief Justice John Roberts, who has become famous for being the Court’s swinging door, tried (and may still be trying) to persuade conservative Justices Kavanaugh and Barrett to side with him on a compromise. It would uphold the 15-week Mississippi abortion law, but not overturn Roe v. Wade.

According to anonymous conservative “sources,” Roberts failed on that but is still trying to convince someone to flip to a compromise that would keep Roe but remove the viability standard (Roe only legalized abortion up to mid-pregnancy.) But as Bonchie at points out, without the viability standard, there’s nothing enforceable left to Roe, so what’s the point of upholding a gutted, meaningless ruling conservatives believe is unconstitutional?

Roberts’ waffling, if true, would hardly be surprising, but the most important aspect of the story is this: while the leaked ruling is from February 10th and has likely been altered and amended since then, apparently, the five-vote majority to overturn Roe must be intact or Roberts wouldn’t still be trying to convince someone to “compromise” – something that’s now even less likely, since it would be seen as caving to mob threats and intimidation. So the loudest bullies might just be shooting themselves in the foot.