On an ordinary day, Chief Justice John Roberts asks pointed questions of counsel and brief-slaps them if their answers don’t measure up. He also acts as kindergarten cop when his colleagues all speak at once. He is a formidable presence on the bench.
Except Wednesday during oral argument in McCullen v. Coakley, the Massachusetts case testing whether a state can establish a 35-foot “buffer zone” around clinics offering abortions so that patients can get inside without fighting their way through pro-life and pro-choice demonstrators.
There are two possible meanings to the chief’s silence. One is that he is genuinely undecided about a case that pits the rights of pregnant women against the rights of protest and advocacy on a public sidewalk.
That one’s not likely. Hamlet John Roberts is not. That’s particularly true in the First Amendment context, where he usually sides against government restrictions on speech.
So the more likely inference is that his mind is made up and nothing either lawyer could say Wednesday was going to change it. If that’s the case, then the Massachusetts law is doomed. It was easy to count four votes against it: Justice Antonin Scalia, who regards the statute as an attack on loveable old people who go to clinic sidewalks “to comfort these women”; Justice Anthony M. Kennedy, who is a near-absolutist on any government restriction of speech; Justice Samuel A. Alito, who suggested that the law was aimed at suppressing the pro-life viewpoint while allowing pro-choice clinic employees to speak; and Justice Clarence Thomas, whose view of the First Amendment centers around public spaces, and who has little use for abortion. Add Roberts and it is, as Lyndon Johnson used to say, “Goodnight, Grace.”