Clarence Thomas calls out John Roberts as the Supreme Court moves closer to overturning Roe v. Wade | CNN Politics

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There was a rarely seen warm moment between Chief Justice John Roberts and Justice Clarence Thomas last November 1, just before the Supreme Court heard arguments on Texas’ abortion ban.

Roberts announced that 30 years ago, on that exact date, a ceremonial investiture had been held for Thomas. Thomas, sitting to Roberts’s right, smiled and put his arm around the boss’s shoulder.

That collegiality in the courtroom, filled with only a few dozen spectators due to Covid-19 protocols, has faded. The two judges are now involved in an epic fight over a new abortion case that could spell the end of Roe v. Wade across the country and disturb the public image of the court.

Last week at a conference in Dallas, Thomas delivered a surprising public jab at Roberts. Thomas has long promoted good relations on the pitch and has avoided public criticism of his colleagues. He may not have always hugged his colleagues, but he avoided letting out any enmity.

Thomas recalled last week the court atmosphere before 2005, when Roberts joined, saying: “We actually trusted each other. We may have been a dysfunctional family, but we were a family and we loved it.”

Thomas’s forceful comments suggest a new antagonism towards Roberts and added to the uncertainty surrounding the final ruling in Dobbs v. Jackson Women’s Health Organization, expected in late June.

Roberts, with his institutionalist approach, positions himself as the only judge who could generate a compromise opinion that falls short of completely overturning Roe v. Wade, at least this year. That would thwart an outcome Thomas has worked for decades.

The pending decision, with half a century of privacy rights at stake, was already the most anticipated in years. After Politico published on May 2 a first draft opinion dated February 10 that appeared to show a majority ready to reverse Roe v. Wade, defenders on both sides went into overdrive.

Protests erupted across the country, and the Supreme Court erected an 8-foot non-climbable fence to help secure their building. The Department of Homeland Security warned Wednesday of future threats and possible violence directed at judges and health care workers at abortion clinics.

CNN previously reported that Roberts was trying to prevent Roe’s reversal, even though he favors maintaining Mississippi’s ban on abortions after 15 weeks of pregnancy.

It’s not known if he’s made any progress, but Roberts has a history of orchestrating last-minute changes in big cases, much to the dismay of his conservative brethren.

Thomas’ comments pulled back the curtain on internal tensions. Perhaps they revealed a long-simmering feeling for a boss who has twisted relationships over the years. Or perhaps they reflected internal recriminations about who might be responsible for releasing the draft opinion. Or perhaps they indicate that the apparent five-justice majority to overturn Roe is not so certain.

It is not unusual to hear Thomas ridicule the court’s traditional adherence to precedent, known by the Latin phrase stare decisis. “We use stare decisis as a mantra when we don’t want to think,” he insisted in a speech in Atlanta in early May.

But Thomas’s sudden aim at leading Roberts is new. At the Dallas arraignment, his message to the Chief Justice boiled down to: The court was better off before you came along.

When Thomas responded to a question about relationships between the justices, such as the famous friendship of the late Ruth Bader Ginsburg and Antonin Scalia, Thomas said, “This is not the court of that time.”

“I sat with Ruth Ginsburg for almost 30 years. And she was actually an easy mate for me. You knew where she was at (on legal matters) and she was a good person to deal with. Sandra Day O’Connor, you could say the same.”

Referring to the bench from 1994 to 2005, when the same nine were together with no changes, Thomas said: “The court that was together for 11 years was a fabulous court. It was one you hoped to be a part of.” (Thomas did not respond to a CNN request for an interview.)

The controversy over Roe v. Wade and the released draft seemed to elicit most of their comments. Thomas has been separately at the center of another storm in recent weeks, linked to his wife, Virginia “Ginni” Thomas.

Thomas did not recuse himself from cases related to the 2020 election and the January 6 riots at the US Capitol, at a time when Ginni Thomas was reportedly privately urging aides to Trump to press the legal case to reverse the election results that showed Joe Biden winning the presidency.

Neither Thomas nor Roberts has said anything publicly about that situation or the court’s general lack of transparency on recusal issues. And now, all internal conflicts over ethics have been overtaken by the abortion rights case and other substantive disputes that will be resolved in these final weeks of the 2021-22 annual session.

Thomas and Roberts have different trading patterns.

Thomas is known for putting his cards on the table and hating the game. The first attribute he attributed to Ginsburg was revealing: “You knew where he was.”

Roberts, unlike Thomas, has a reputation within the court for being cautious, even secretive.

Some conservatives still blame him for a late swing in the vote to save the Obama-sponsored Affordable Care Act in 2012. In that case and others, when Roberts joined liberals in reaching a compromise, the The change prevented the court from lurching too far to the right and reflected its institutionalist interests.

Thomas has been more eloquent over the years in condemning Roe, just as he chooses to publicly dissent when the justices reject important issues.

In June 2020, when judges rejected a New Jersey Second Amendment appeal, he wrote, “(I)n several jurisdictions across the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ to do so. One would think that such an onerous burden on a fundamental right would warrant review by this Court. This Court would almost certainly review the constitutionality of a law that requires citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a state to enforce a law that requires a woman to meet a justified need before seeking an abortion.”

This session, while justices are poised to strike down abortion rights, Thomas is also poised to lead the way on the Second Amendment in a New York case that raises issues related to the earlier New Jersey dispute.

Roberts has a steep climb to create a compromise that keeps Roe partially intact. The right-wing bloc allowed Texas’ virtual abortion ban to go into effect last year, and during oral arguments in the Mississippi case, it seemed to be sticking together to eviscerate Roe. The two conservatives most likely to be receptive to Roberts’s call to stop Roe’s rollback would be the newer ones: Brett Kavanaugh and Amy Coney Barrett.

Roberts has a case to make: When the justices first agreed to hear the Mississippi dispute last May, they said they would limit the dispute to the question of “whether all previability bans on elective abortions are unconstitutional.”

The decision Roe v. Wade of 1973, reaffirmed by Planned Parenthood vs. Casey in 1992, it gave women the right to terminate a pregnancy before the fetus is viable, that is, able to live outside the womb, which, according to doctors, occurs around 23 weeks. Mississippi’s 15-week law conflicts with that guarantee, but upholding it would not necessarily limit a woman’s right to terminate a pregnancy in the early weeks.

The draft opinion published by Politico, written by Justice Samuel Alito, rejects the court’s original reasoning from 1973 that gave women the right to privacy to terminate a pregnancy and argues that the time has come to reverse Roe.

The persuasive force of Roberts, a former star appellate defender who continues to muster notable compromise decisions, cannot be discounted.

And the pending Mississippi case would have a much broader impact on constitutional privacy rights than the dispute over Texas’ abortion ban in about six weeks. Roberts, who dissented in that case, failed to persuade Kavanaugh, Barrett or any of the five right-wingers to change.

If the draft published by Politico were to become the final decision, half a century of women’s reproductive freedom would evaporate and other personal privacy rights would be in jeopardy.

Prior to this court session, the judges’ last review of the abortion rights law came in 2020, when Ginsburg was still on the bench and Roberts cast the deciding vote to repeal a restrictive abortion law in Louisiana. Roberts, who has opposed abortion rights in the past, based his vote on adhering to precedent.

Thomas was among the four dissidents in that case. June Medical Services v. Russian. In a solo dissent, he wrote that the precedent for abortion rights had been created “out of thin air, without a shred of support from the text of the Constitution.”

And the judge who has found increasing support for his views declared: “Our abortion precedents are seriously flawed and must be overturned.”