Roberts Is Courting a Constitutional Crisis

The attempted assassination of Justice Brett Kavanaugh makes it abundantly clear that Chief Justice John Roberts is playing with fire in refusing to issue the Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, the case that could potentially overturn Roe v. Wade. The potential for someone to make an attempt on a justice’s life was predictable once the draft majority opinion, in a shocking move, was leaked—but the threat appears more serious in the wake of a deranged person having arrived at Kavanaugh’s home with the stated intention, and with weapons in tow, to kill him. 

It is hard to imagine the devastating effect upon our already polarized society, its institutions, and the Constitution itself if someone were to murder a justice in cold blood and then reap the following rewards for the assassination: 

  • Because Supreme Court rulings aren’t final until released, a 5-4 ruling to overturn Roe would immediately become a 4-4 opinion, thereby leaving Roe on the books.
  • The president who would get to replace the murdered justice would be Joe Biden, who has repeatedly said he is firmly committed to keeping Roe in place.
  • The Senate that would get to confirm Biden’s nominee would be the current Democratic-controlled one, and the Democratic Party is adamantly committed to upholding Roe

In short, an assassination could lead to Roe being upheld rather than overturned in the short term, Biden and his Democratic allies being able to replace the murdered justice with one of Biden’s choosing ahead of the midterm elections, and Roe remaining a fixture in the constitutional firmament in the long term. 

There doesn’t appear to have been a prior moment in our history when the potential killing of a justice could have had such consequential effects. Roe wasn’t decided on a 5-4 vote; the murder of a justice wouldn’t have swung its 7-2 outcome. In all of American history, the only other case as contentious as Roe—and as lawless, unconstitutional, and fateful—was Dred Scott v. Sandford, which was decided on a 7-2 vote by a Southern-dominated Court. The murder of a justice wouldn’t have swung its outcome, either.

Eight years after Dred Scott, a murder did swing the outcome of Reconstruction to a significant (albeit unknowable) degree. But at least Abraham Lincoln’s political foes didn’t get to decide his replacement.

A potential assassination in our day that led to the results described above would be viewed by at least half of all Americans as being so lawless, so barbaric, so unjust, and so in defiance of fair play that it’s hard to imagine the extent of the rift that would develop or how it could potentially be healed. In that horrible circumstance, Roberts should surely cast his vote as a replacement vote for his fallen colleague’s, thereby bringing about the same result (although now by a 5-3 vote) that would have transpired had the laws of our land been followed and a justice of the Court not been killed. But there is no clear sense Roberts would do that.

It would be far easier and simpler for Roberts merely to release the majority opinion now and release the dissents later, when they are ready. 

This would hardly be a radical move. When I ran the Bureau of Justice Statistics at the U.S. Department of Justice, the bureau’s long-standing policy was that if a contractor, member of the press corps, or anyone else released any of our statistics prematurely, we would depart from our existing timeline and release those statistics at that moment. The bureau believed it was better to deviate from the planned release schedule than to allow a premature release on someone else’s part to do damage. In the instance of the Supreme Court and this opinion, the potential for damage is vastly greater.

The chief justice has given every indication thus far that he is determined to treat the unscrupulous release of the draft opinion as a one-off event that won’t cause him to do anything else differently (other than trying to find the brazen perpetrator who betrayed the Court’s norms). But the extraordinary news from Kavanaugh’s home makes clear that it’s pure fantasy to pretend that nothing else has changed—that everything else can proceed as if the leak had never happened. 

In fact, things have changed. The motivation to kill a justice is now too great. Too much of our nation’s commitment to civility and lawfulness is on the line. It’s time to release the majority opinion. If Roberts continues to play with fire, we could face a crisis like none we’ve ever faced before at a time when we’re perhaps least prepared as a nation to withstand it.

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