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Reuters

U.S. Supreme Court expands state power over Native American tribes

Lawrence Hurley – June 29, 2022

WASHINGTON (Reuters) -The U.S. Supreme Court on Wednesday dramatically increased the power of states over Native American tribes and undercut its own 2020 ruling that had expanded tribal authority in Oklahoma, handing a victory to Republican officials in that state.

In a 5-4 decision authored by conservative Justice Brett Kavanaugh, the court ruled in favor of Oklahoma in its bid to prosecute Victor Castro-Huerta, a non-Native American convicted of child neglect in a crime committed against a Native American child – his 5-year-old stepdaughter – on the Cherokee Nation reservation.

Until now, states generally lacked jurisdiction over such crimes, which were prosecuted by the federal government.

The change of course only two years after the July 2020 ruling in a case called McGirt v. Oklahoma was made possible by conservative Justice Amy Coney Barrett’s October 2020 appointment by Republican former President Donald Trump to replace the late liberal Justice Ruth Bader Ginsburg, who had been in the majority in that decision.

Conservative Justice Neil Gorsuch, as he did in 2020, joined the court’s liberal bloc on Wednesday in favor of Native American interests, but its expanded conservative majority meant that this time he was in the minority.

“To be clear, the court today holds that Indian country within a state’s territory is part of a state, not separate from a state,” Kavanaugh wrote in a decision that scholars of Native American law said was a major departure from longstanding precedent.

Kavanaugh added that “under the Constitution and this court’s precedents, the default is that states may exercise criminal jurisdiction within their territory.”

In the McGirt decision, the court recognized about half of Oklahoma – much of the eastern part of the state – as Native American reservation land beyond the jurisdiction of state authorities. That ruling, criticized by Governor Kevin Stitt and other Republicans, meant that many crimes on the land in question involving Native Americans would need to be prosecuted in tribal or federal courts.

Castro-Huerta’s lawyer, Zachary Schauf, said the ruling was “devastating” for his client and others affected but glad the court had not overruled the McGirt decision.

“We look forward to continuing the fight for tribal sovereignty, in Oklahoma and nationwide,” Schauf added.

Wednesday’s ruling affects Oklahoma and could be extended to other states. About 20 states where tribal reservations are located could seek new authority to exert criminal jurisdiction over crimes committed by non-Native Americans against native Americans on Native American land.

That includes western states with large Native American populations including Arizona and New Mexico.

Arizona State University law school professor Stacy Leeds, an expert on Native American legal issues, said the ruling upended “the entire field of federal Indian law” that was based on the assumption that Congress decided the extent of state power over tribes.

“It seems to invite the state in – not by action of the federal government or consent of the tribe. Somehow the states have now magically acquired inherent state jurisdiction,” Leeds added.

‘GRIM RESULT’

Writing in dissent, Gorsuch called Wednesday’s ruling a “grim result for different tribes in different states,” but said its impact could still be limited by individual treaties and laws passed by Congress.

“One can only hope the political branches and future courts will do their duty to honor this nation’s promises even as we have failed today to do our own,” Gorsuch added.

Thirty-five states are home to federally recognized tribes, according to the National Congress of American Indians. Before the Supreme Court ruling, 16 had already been given authority by Congress to assert jurisdiction over at least some tribal land for crimes involving Native Americans.

Oklahoma Attorney General John O’Connor, a Republican, said that as a result of the McGirt ruling many crimes were not being prosecuted by federal authorities.

“Now the state prosecutors can take up the slack and get back to what we have been doing for 113 years,” O’Connor added.

The state already prosecutes crimes committed in the affected land in which no Native Americans are involved. Tribal courts handle crimes committed by and against Native Americans.

Chuck Hoskin, principal chief of Cherokee Nation, said that the justices had ignored court precedent and “basic principles” of law.

Tribes had welcomed the McGirt ruling as a recognition of their sovereignty. The Supreme Court in January rejected Oklahoma’s request to outright overturn it.

Castro-Huerta was convicted in state court of neglecting his stepdaughter, who has cerebral palsy and is legally blind, and sentenced to 35 years in prison. The Oklahoma Court of Criminal Appeals last year threw out that conviction because of the 2020 precedent. Castro-Huerta by then was already indicted for the same underlying offense by federal authorities, transferred to federal custody and pleaded guilty to child neglect. He has not yet been sentenced.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

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People

Supreme Court Rules That States Can Prosecute Non-Native Americans Who Commit Crimes on Tribal Land

Luke Trevisan – June 29, 2022

AP Photo/Robert F. Bukaty

A divided Supreme Court ruled Wednesday that states now have the authority to prosecute crimes committed by non-Natives on tribal land when the victim is Native American.

The high court’s 5-4 decision follows a plead by Oklahoma lawmakers, led by Republican Gov. Kevin Stitt, to revisit a landmark verdict in 2020 which saw SCOTUS side with Indigenous sovereignty and reserved the right to prosecute these crimes to federal and tribal officials.

In a 5-4 decision of the 2020 McGirt v. Oklahoma ruling, with Justice Neil Gorsuch penning the majority opinion, he maintained that Oklahoma did not possess the authority nor jurisdiction to prosecute McGirt, an individual who was convicted by the state for sex abuse crimes and is a member of the Seminole Nation of Oklahoma.

The new arguments were centered around Victor Castro-Huerta, a non-Native who was charged by state prosecutors for the malnourishment of his disabled 5-year-old stepdaughter, who is Native-American and a member of the Eastern Band of Cherokee Indians in Oklahoma.

Crucially, the court acknowledged when it accepted Castro-Huerta’s case that it rejected the state’s request to overturn the McGirt ruling in its entirety, and it has only agreed to reconsider the jurisdictional issue. The court noted this is specifically for cases in “Indian Country” where the victim is Native American and the defendant is not.

RELATED: Justice Sonia Sotomayor Admits Potential for SCOTUS to Make ‘Mistakes’ but Explains Why She Still Has ‘Faith’

An important precedent established in the court’s 2020 decision is that a significant portion of eastern Oklahoma is still an American Indian reservation. The ruling mandated that the state is unable to prosecute Native Americans accused of crimes on tribal lands that include most of Tulsa, Oklahoma’s second-largest city and also one of the most dangerous metro areas in the United States.

A major component in both McGirt v. Oklahoma and Castro-Huerta’s case is the fact that federal officials have conceded they lack the resources to prosecute the totality of crimes that have fallen on their laps.

Justice Kavanaugh, a dissenter in the 2020 ruling, weighed in and stated, if the court rules against the state, “it’s going to hurt Indian victims,” he said.

Kannon Shanmugam, an attorney representing the state of Oklahoma, emphatically denounced the high court’s previous verdict, stating that only the federal government possesses the authority to prosecute crimes in almost half the state, which poses a substantial problem and leaves criminals on the street.

On the contrary, Sarah Hill, who serves as attorney general for the Cherokee Nation of Oklahoma, blasted SCOTUS’ decision to revisit the issue, stating, “prior to the decision in McGirt, Oklahoma had never attempted to assert jurisdiction over non-Indians who committed crimes against Indians,” adding that Oklahoma was trying to “create as much chaos and doubt as possible.”

A key swing vote in the case was Justice Amy Coney Barrett, the only current member who did not sit on the court when they debated the McGirt case. The associate justice sided with the majority.

Notably, Coney Barrett replaced Justice Ruth Bader Ginsberg after her death, who sided with the majority in McGirt v. Oklahoma, emphasizing the importance of a single justice.

RELATED: Jim Obergefell, Whose Landmark Case Legalized Gay Marriage, Says ‘I Have to Keep Fighting’ as Roe Is Overturned

In the majority’s explanation Wednesday, the five justices stressed that extending prosecutorial jurisdiction to the state would not impede on tribal independence.

“Here, the exercise of state jurisdiction would not infringe on tribal self-government. And because a State’s jurisdiction is concurrent with federal jurisdiction, a state prosecution would not preclude an earlier or later federal prosecution. Finally, the State has a strong sovereign interest in ensuring public safety and criminal justice within its territory, including an interest in protecting both Indian and non-Indian crime victims,” the verdict read.

The verdict will be widely viewed as an attack on the sovereignty of tribal lands and a breach of agreements between the government and Native American tribes, as the McGirt ruling previously solidified several treaties between the two sides.

Hill weighed in after that ruling, stating, “It’s incredibly important to the tribe to preserve the maximum amount of sovereignty that we have because that’s how we protect our communities.”

Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement Wednesday: “With today’s decision, the U.S. Supreme Court ruled against legal precedent and the basic principles of congressional authority and Indian law.”

As the court’s dynamics continue to shift, many previously ruled upon cases could be reviewed by the high court, with verdicts continuing to change.

Yahoo! News

Cassidy Hutchinson says she was ‘scared’ about Trump’s plan to go to the Capitol on Jan. 6

David Knowles, Senior Editor – June 28, 2022

Cassidy Hutchinson, a former aide to Donald Trump’s White House chief of staff Mark Meadows, testified before the House select committee on Tuesday that she was “scared” when she learned about plans for Trump to go to the U.S. Capitol on Jan. 6, 2021, to press his assertion that he had not lost the 2020 election.

Hutchinson, a key witness in the Jan. 6 select committee’s investigation into the Capitol riot and the former president’s role in it, recounted a Jan. 2 meeting with then-Trump lawyer Rudy Giuliani.

“As Mr. Giuliani and I were walking to his vehicle that evening, he looked at me and said something to the effect of, ‘Gosh, are you excited for the 6th? It’s going to be a great day.’ And I remember saying, ‘Rudy, can you explain what’s happening on the 6th?’” Hutchinson testified. “He responded something to the effect of, ‘We’re going to the Capitol. It’s going to be great. The president is going to be there, he’s going to look powerful. He’s going to be with the members. He’s going to be with the senators. Talk to the chief about it, talk to the chief about it. He knows about it.’”

The testimony provided the first eyewitness account that the Trump White House had indeed planned for the then president to personally go to the U.S. Capitol in his bid to block the certification of the Electoral College vote showing he had lost.

Hutchinson continued her testimony, saying she then returned to the West Wing and asked Meadows about Giuliani’s comments.

“I just had an interesting conversation with Rudy, Mark. Sounds like we’re going to go to the Capitol,” she told Meadows. “He didn’t look up from his phone and said something to the effect of, ‘There’s a lot going on, Cass, but I don’t know, things might get real, real bad on January 6th.”

Meadows, who perhaps had more direct knowledge of Trump’s intentions than any other White House staff member, initially provided text messages to the committee, then refused to testify further in the investigation.

Hutchinson told the committee that learning of the plan for Trump to go to the Capitol, where his supporters would later stage a riot in an effort to block the certification of the election, frightened her.

“In the days before January 2nd I was apprehensive about the 6th. I had heard general plans for a rally. I had heard tentative movements to potentially go to the Capitol, but when hearing Rudy’s take on January 6th and then Mark’s response, that was the first, that evening was the first moment that I remember feeling scared and nervous for what could happen on January 6th, and I had a deeper concern for what was happening with the planning aspects of it.”

Insider

Impeaching Clarence Thomas: How Democrats could remove conservative justices

C. Ryan Barber – June 27, 2022

• Democrats have increased calls to remove justices in response to the overturning of Roe v. Wade.
• Justice Clarence Thomas previously faced calls for impeachment in connection with January 6.
• Senators have questioned whether Justices Brett Kavanaugh and Neil Gorsuch lied about their views.

The many controversies and polarizing opinions spilling out of the Supreme Court in recent months have drawn calls for an event not seen in more than two centuries of American history: the impeachment of a sitting justice.

Even before Friday’s decision eliminating the constitutional right to an abortion, Democrats including Rep. Alexandra Ocasio-Cortez had voiced support for impeaching Justice Clarence Thomas, the longest-tenured sitting member of the Supreme Court. At the time, the demands for his removal centered on the revelation of more than two dozen text messages Thomas’ wife, Ginni Thomas, exchanged with onetime White House chief of staff Mark Meadows as she sought to help former President Donald Trump overturn the 2020 election.

And those calls intensified after Thomas joined with other justices in the Supreme Court’s conservative bloc to overturn Roe v. Wade, the nearly 50-year-old decision that established a constitutional right to an abortion. Other justices are now facing similar calls for impeachment amid questions about whether they misled the Senate during their confirmation proceedings about their views on Roe.

“I believe lying under oath is an impeachable offense,” Ocasio-Cortez said during a recent interview on NBC’s Meet the Press, referring to Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh.

Indeed, eyebrows lifted on both sides of the aisle after the Kavanaugh and Gorsuch joined in the reversing Roe. Sen. Susan Collins, a Maine Republican who supported Gorsuch’s and Kavanaugh’s confirmations, said the decision was inconsistent with what the two justices said “in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon.”

Sen. Joe Manchin, a West Virginia Democrat, said he “trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v Wade was settled legal precedent, and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.”

In his controversial concurring opinion in the abortion case, Thomas argued the Court should also “reconsider” rulings that established rights to same-sex marriage, access to birth control and gay sex.

Amid nationwide protests and anxiety over the potential rollback of those rights, a petition calling for Thomas’ impeachment continued to pick up support. The petition, organized in March by the advocacy group MoveOn, had received more than 300,000 signatures.

How to impeach a Supreme Court justice

The process of impeaching a Supreme Court justice is identical to the more well-tread procedure for removing a sitting president.

First, the House must draft articles of impeachment. The House then needs only a majority, however slim, to impeach a Supreme Court justice or any other federal judge. But a two-thirds majority is required in the Senate to convict.

Given the current political climate — Democrats have the thinnest majority possible, with a 50-50 Senate — it’s almost certain that Thomas wouldn’t be removed from his lifetime appointment. Republicans are enjoying a significant ideological majority on the Supreme Court, with six of nine justices.

What would be grounds for impeaching Thomas?

Given Ginni Thomas’ texts, some Democrats have noted that in January, Clarence Thomas stood out as the only justice to dissent when the Supreme Court rejected Trump’s bid to block the release of some presidential records to the House committee investigating the attempt to disrupt the peaceful transfer of power.

Thomas had previously dissented in February 2021 when the Supreme Court turned away election challenges filed by Trump and his political allies. Thomas described the decision to not hear the cases as “baffling” and “inexplicable,” saying in dissent that the Supreme Court should have taken the opportunity to provide states with guidance for elections.

Some Democrats in 2019 had clamored for the impeachment of Supreme Court Justice Brett Kavanaugh, but no serious impeachment effort in Congress ever materialized.

Federal judicial impeachments are rare

Federal judges, including those on the Supreme Court, have lifetime appointment — their tenures typically ending with retirement or death.

As a Brennan Center for Justice study noted in 2018, the impeachment of federal judges “is rare, and removal is rarer still.” The study found that the House had impeached only 15 judges since 1803 — an average of one every 14 years — and only eight of those proceedings resulted in convictions by the Senate.

The history of impeaching a Supreme Court justice requires a more than 200-year reach back into American history.

In 1804, Justice Samuel Chase went down in history as the first — and, so far, only — sitting member of the Supreme Court to be impeached when the House accused him of refusing to dismiss biased jurors and excluding or limiting defense witnesses in a pair of politically sensitive trials.

An official Senate website describes Chase as a “staunch Federalist with a volcanic personality” who “showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801.” Then-President Thomas Jefferson backed the impeachment effort.

But in 1805, Chase survived the impeachment proceedings after his legal team — including “several of the nation’s most eminent attorneys” — convinced enough senators that the justice’s conduct did not warrant removal from the Supreme Court, according to the Senate website. Chase continued serving on the Supreme Court and died in 1811.

In 2010, the Senate voted to convict Thomas Porteous, then a federal judge in New Orleans, after the House impeached him on allegations of bribery and making false statements. Other judges have resigned in the face of threatened impeachment and removal from their lifetime appointments.

A text-message brouhaha

Ginni Thomas’ text messages were among the more than 2,000 that Meadows turned over to the special House committee investigating the January 6, 2021, attack on the Capitol. The messages show how eagerly Thomas promoted and pushed to guide Trump’s strategy to overturn his 2020 electoral defeat.

In some of the messages, Thomas elevated the conservative lawyer Sidney Powell, who has since faced sanctions over her lead role advancing Trump’s baseless claims of election fraud.

“Sounds like Sidney and her team are getting inundated with evidence of fraud. Make a plan. Release the Kraken and save us from the left taking America down,” Thomas wrote in a November 2020 text to Meadows.

“Suggestion: You need to buck up your team on the inside, Mark,” Thomas wrote in another message. “The lower level insiders are scared, fearful or sending out signals of hopelessness vs an awareness of the existential threat to America right now. You can buck them up, strengthen their spirits.”

It is unclear whether the 29 messages — 21 sent by Thomas, eight by Meadows — reflected the extent of their communication.

Justice Thomas faced calls for his retirement or resignation even before his wife’s text messages with Meadows became public, as The New Yorker, The New York Times, and other media outlets illuminated his wife’s political activism.

But the text correspondence brought a new tenor to the pressure on Thomas to step down from the Supreme Court.

In March, Rep. Ilhan Omar, a Minnesota Democrat, wrote in a Twitter post that “Clarence Thomas should be impeached.”

Ocasio-Cortez threatened Thomas with impeachment if he refused to resign.

“Clarence Thomas should resign,” the New York Democrat wrote on Twitter. “If not, his failure to disclose income from right-wing organizations, recuse himself from matters involving his wife, and his vote to block the Jan 6th commission from key information must be investigated and could serve as grounds for impeachment.”

Meanwhile, other lawmakers have called for Justice Thomas to recuse himself from cases related to January 6.

Sen. Dick Durbin, the top Democrat on the Senate Judiciary Committee, said the text message correspondence “raises a serious question about conflict of interest for Justice Thomas.”

“To think that he would consider a case where his wife is frequently contacting the chief of staff for the president and giving advice on matters that are going to be ultimately litigated by the court,” Durbin told reporters on Capitol Hill. “For the good of the court, I think he should recuse himself from those cases.”

Sen. Ron Wyden, an Oregon Democrat, called on Thomas to recuse himself from cases involving the Capitol-riot investigation and 2024 election because his “conduct on the Supreme Court looks increasingly corrupt.”

President Joe Biden, however, declined to call for Justice Thomas to recuse himself from such cases.

House Minority Leader Kevin McCarthy said it would be up to Thomas to decide whether to recuse himself from cases involving the investigation into January 6, 2021.

In an interview with The Washington Free Beacon, Ginni Thomas said, “Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”

But in a 2011 speech, Clarence Thomas appeared to link his service on the Supreme Court to his wife’s political advocacy.

“We love being with each other because we love the same things. We believe in the same things … We are focused on defending liberty. So I admire her and I love her for that because it keeps me going,” Thomas said.

The New York Times

June 24, 2022: The Day Chief Justice Roberts Lost His Court

Adam Liptak – June 25, 2022

WASHINGTON — In the most important case of his 17-year tenure, Chief Justice John Roberts found himself entirely alone.

He had worked for seven months to persuade his colleagues to join him in merely chipping away at Roe v. Wade, the 1973 decision that established a constitutional right to abortion. But he was outflanked by the five justices to his right, who instead reduced Roe to rubble.

In the process, they humiliated the nominal leader of the court and rejected major elements of his jurisprudence.

The moment was a turning point for the chief justice. Just two years ago, after the retirement of Justice Anthony Kennedy made him the new swing justice, he commanded a kind of influence that sent experts hunting for historical comparisons. Not since 1937 had the chief justice also been the court’s fulcrum, able to cast the decisive vote in closely divided cases.- ADVERTISEMENT -https://s.yimg.com/rq/darla/4-10-1/html/r-sf-flx.html

Roberts mostly used that power to nudge the court to the right in measured steps, understanding himself to be the custodian of the court’s prestige and authority. He avoided what he called jolts to the legal system, and he tried to decide cases narrowly.

But that was before a crucial switch. When Justice Amy Coney Barrett, a conservative appointed by former President Donald Trump, succeeded Justice Ruth Bader Ginsburg, the liberal icon, after her death in 2020, Roberts’ power fizzled.

“This is no longer John Roberts’ court,” Mary Ziegler, a law professor and historian at the University of California, Davis, said Friday.

The chief justice is now in many ways a marginal figure. The five other conservatives are impatient and ambitious, and they do not need his vote to achieve their goals. Voting with the court’s three liberals cannot be a particularly appealing alternative for the chief justice, not least because it generally means losing.

Roberts’ concurring opinion in Friday’s decision, Dobbs v. Jackson Women’s Health Organization, illustrated his present and perhaps future unhappy lot. He had tried for seven months to persuade a single colleague to join his incremental approach in the case, starting with carefully planned questioning when the case was argued in December. He failed utterly.

In the end, the chief justice filed a concurring opinion in which he spoke for no one but himself.

“It leaves one to wonder whether he is still running the show,” said Allison Orr Larsen, a law professor at the College of William & Mary.

The chief justice will face other challenges. Although Justice Samuel Alito, writing for the majority, said that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” both liberal and conservative members of the court expressed doubts.

Justice Clarence Thomas, for instance, wrote in a concurring opinion that the court should go on to overrule three “demonstrably erroneous decisions” — on same-sex marriage, gay intimacy and contraception — based on the logic of Friday’s opinion.

In Friday’s abortion decision, Roberts wrote that he was ready to sustain the Mississippi law at issue in the case, one that banned most abortions after 15 weeks of pregnancy. The only question before the court was whether that law was constitutional, and he said it was.

“But that is all I would say,” he wrote, “out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”

He chastised his colleagues on both sides of the issue for possessing unwarranted self-confidence.

“Both the court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share,” he wrote. “I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after 15 weeks.”

The failure of his proposed approach was telling, Larsen said.

“It sounds like the justices are talking past each other,” she said. “There is very little evidence of moderation or narrowing grounds to accommodate another’s point of view.”

The chief justice acknowledged that his proposed ruling was at odds with the part of Roe v. Wade that said states may not ban abortions before fetal viability, around 23 weeks. He was prepared to discard that line. “The court rightly rejects the arbitrary viability rule today,” he wrote, noting that many developed nations use a 12-week cutoff.

But there was more to Roe than the viability line, Roberts wrote. The court should have stopped short, he wrote, of taking “the dramatic step of altogether eliminating the abortion right first recognized in Roe.”

Alito rejected that approach.

“If we held only that Mississippi’s 15-week rule is constitutional, we would soon be called upon to pass on the constitutionality of a panoply of laws with shorter deadlines or no deadline at all,” he wrote. “The ‘measured course’ charted by the concurrence would be fraught with turmoil until the court answered the question that the concurrence seeks to defer.”

The chief justice’s proposal was characteristic of his cautious style, one that has fallen out of favor at the court.

“It is only where there is no valid narrower ground of decision that we should go on to address a broader issue, such as whether a constitutional decision should be overturned,” he wrote Friday, citing his opinion in a 2007 campaign finance decision that planted the seeds that blossomed into the Citizens United ruling in 2010.

That two-step approach was typical of Roberts.

The first step of the approach in 2007 frustrated Justice Antonin Scalia, who accused him in a concurrence of effectively overruling a major precedent “without saying so.”

“This faux judicial restraint is judicial obfuscation,” Scalia, who died in 2016, wrote at the time. But Scalia did not have the votes to insist on speed. Roberts’ current colleagues do.

At his confirmation hearing in 2005, Roberts said the Supreme Court should be wary of overturning precedents, in part because doing so threatens the court’s legitimacy.

“It is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness.”

He used similar language in criticizing the majority Friday.

“The court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases,” he wrote. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”

There are, to be sure, areas in which there is little or no daylight between Roberts and his more conservative colleagues, including race, religion, voting rights and campaign finance. In other areas, as in a death penalty decision Thursday, he may be able to forge a coalition with the three liberals and Justice Brett Kavanaugh.

But Roberts, 67, may have a hard time protecting the institutional values he prizes. The court has been buffeted by plummeting approval ratings, by the leaked draft of Friday’s majority opinion, by revelations about the efforts of Virginia Thomas, the wife of Clarence Thomas, to overturn the 2020 election, and by Thomas’ failure to recuse himself from a related case.

Tensions are so high that federal officials arrested an armed man this month outside Kavanaugh’s home and charged him with trying to kill the justice. There have been protests outside the justices’ homes in anticipation of the Roe ruling. Ten days ago, Congress approved legislation extending police protection to the justices’ immediate families.

The climate — and a court that routinely divides along partisan lines in major cases — has increasingly undercut Roberts’ public assertions that the court is not political.

“We don’t work as Democrats or Republicans,” he said in 2016. Two years later, he reiterated that position in an extraordinary rebuke of President Donald Trump after Trump responded to an administration loss in a lower court by criticizing the judge who issued it as an “Obama judge.”

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a sharp public statement that nonetheless went against substantial evidence to the contrary even then.

On Friday, all three Democratic appointees voted to strike down the Mississippi law and all six Republican ones voted to uphold it.

His concurring opinion and his institutionalist impulses notwithstanding, Roberts may have a hard time convincing the public that party affiliations say nothing about how the justices conduct their work.