Supreme Court watchers have been keeping their eyes peeled for any indication of how the justices may rule on the case of Dobbs v. Jackson Women’s Health Organization, which deals with a Mississippi law banning abortions after 15 weeks of pregnancy and could result in the pro-abortion precedents of Roe v. Wade or Planned Parenthood v. Casey being revisited or overturned.
A potentially significant hint in that regard — and likely in favor of the pro-life side of the abortion debate — may have been revealed on Thursday, albeit due to the release of a decision in a completely unrelated case and who wrote that particular opinion, The Daily Wire reported.
What occurred on Thursday is that Chief Justice Roberts released a 6-3 opinion he authored in the case of Cummings v. Premier Rehab Keller, which deals with the recovery of medical damages under certain federal statutes. As noted, that case had absolutely nothing to do with abortion.
The fact that Roberts wrote the opinion appears significant though because it likely means he won’t be the author of the Dobbs opinion, given that both cases were argued during the December session and the court tends to try and evenly distribute opinion authorship among the nine justices for each session.
Distribution of opinion authorship per session is key
“Roberts’ authorship of this opinion suggests (but does not guarantee) that he is NOT writing the abortion decision. Otherwise, he would have two majority opinions from the December sitting and some other justice would have none,” Bloomberg News Supreme Court correspondent Greg Stohr tweeted.
That said, Stohr noted in follow-up tweets that Justice Neil Gorsuch had authored two opinions from the November session while Justices Clarence Thomas and Amy Coney Barrett hadn’t written any and further speculated that there could have been some behind-the-scenes horsetrading among the conservative-leaning justices about who would write the abortion law ruling and when.
A similar, though more partisan take was issued on the possible development by University of Michigan Law School Assistant Professor Leah Litman, who observed in a thread of tweets, “NOTE: this is important: Cummings was argued in the December sitting. So was Dobbs (the MS abortion case). There are only 9 cases argued in December –> that SEEMS TO IMPLY that the Chief Justice was NOT assigned the opinion in Dobbs.”
She went on to speculate that Roberts had possibly assigned Dobbs to either Barrett or Justice Brett Kavanaugh “in the hope that they would see their way to not completely overruling Roe, but just eviscerating it (for now),” but also pointed out the possibility that “it was assigned to someone who didn’t share the Chief’s views — and wanted to completely overrule Roe.”
Roberts allegedly seeking the middle path that will leave everyone dissatisfied
All of this follows close on the heels of a recent Wall Street Journal editorial which argued that the Supreme Court should overrule Roe and Casey and return to the states the right to regulate abortion as they best see fit, but speculated that Chief Justice Roberts was attempting to convince one or more other justices to join him in crafting a narrow decision that would be in favor of Mississippi’s law but would leave the prior precedent cases untouched.
That piece by the Journal’s editorial board — which may have been the result of an insider leak ahead of the Dobbs ruling — ultimately predicted that Roberts would be unsuccessful in that attempt and Justice Samuel Alito would most likely author a favorable 6-3 or 5-4 decision for Mississippi, with Roberts possibly joining the three liberal justices in dissent or writing a separate non-controlling opinion of his own.
Of course, one thing to keep in mind amid all of the speculations is that nobody except the nine justices knows at this point how the Dobbs case will turn out, and the chief justice may well have deemed the case important enough to assign the opinion to himself even though he has already written opinions for other cases during the session in question.
We will all just have to continue to wait until some point in June or July when the current term ends and the final decision rendered in this incredibly consequential case is eventually released.