Why Merrick Garland is channeling John Roberts in DOJ's fight against the Texas abortion ban

When Attorney General Merrick Garland mustered the power of the federal government to attempt to stop Texascontroversial abortion ban Thursday, he made sure to single out Chief Justice John Roberts in his press conference.

A prima vista, it was an odd choice.
Roberts, Dopotutto, had dissented from the majority on September 1 when the Supreme Court allowed the law to go into effect. Chiaramente, the chief justice was unable to persuade his five conservative colleagues to block the law and was left to join his liberal colleagues on the losing side of the dispute.
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    I would grant preliminary relief to preserve the status quo antebefore the law went into effectso that the courts may consider whether a state can avoid responsibility for its laws in such a manner,” Roberts wrote in his dissent.
      But Garland, a stymied Supreme Court nominee who previously served with Roberts on the federal bench and was himself once the chief judge of the most powerful appellate court in the land, seemed to be sending a strong signal to the court as a whole: If the justices ultimately allow the Texas law, it could open a dangerous new era.
        Quoting Roberts, Garland said that the law was an attempt toinsulate the state from responsibility.
        Garland was pointing to the fact that the law was written to make it difficult to challenge because state officials are not charged with enforcing it.
          This kind of scheme to nullify the Constitution of the United States is one that all Americanswhatever their politics or partyshould fear,” Garland said. “If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.
          Between the lines, Garland was envisioning similar copycat laws, modeled after the Texas law, where private citizens are deputized as self-appointed state officers or bounty hunters to bring lawsuits in other areas. The First Amendment? The Second Amendment?
          Chief judges and chief justices, more so than other judges, often think about the institutional legitimacy of the courts.
          Roberts, pure, is capable of imagining what kind of new challenges could pelt the court that bears his name in the coming years. Here’s what he warned in his dissent: “(T)he consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.
          Garland also chose to deploy the word “schema” to describe the novel law, and in doing so he was cribbing from the first line of Robertsdissent. “The statutory scheme before the Court is not only unusual, but unprecedented,” Roberts said.
          Garland was implicitly saying to the judiciary: This law was specifically meant to keep you out of the game, and constitutional rights are at stake.
          Some have questioned Garland’s invocation of Robertsdissent. “It is suboptimal when your lead quotation in a new lawsuit is from a dissenting opinion that came out last week,” Washington lawyer Gregory Lipper tweeted.
          But Garland may have been looking forward and thinking about another part of Robertsdissent.
          Although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented,” Roberts ha scritto.
          Garland believes his lawsuit ultimately offers the highest court in the land that opportunity.
          As for Roberts, he has long respected Garland, although they are not on the same ideological spectrum.
          Roberts praised Garland, without invoking his name, in his annual 2019 year-end report. “The current chief judge of the District of Columbia Circuit has, over the past two decades, quietly volunteered as a tutor at a local elementary school, inspiring his court colleagues to join the effort,” Roberts said.
          E in 2005, Roberts was asked during his confirmation hearing about an opinion he wrote concerning the False Claims Act on the US Court of Appeals of the DC Circuit where Garland dissented.
            Roberts allowed it was one of the most difficult cases he had faced and that it wascertainly possible that the majority in that case didn’t get it right.
            Any time Judge Garland disagrees,” Roberts conceded, “you know you’re in a difficult area.

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