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John Roberts warns his fellow justices against Texas nullification: ‘Our constitutional system is at stake’

December 11, 2021

Chief Justice John Roberts cited two cases from early constitutional law with a dire warning as the U.S. Supreme Court on Friday delivered a ruling on the near-total ban on abortion passed by Republicans in Texas.

In an opinion where he concurred in part and dissented in part, Roberts was joined by Justices Sonia Sotamayor and Elena Kagan.

“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” Roberts wrote, listing the legislative name of the Texas bill.

“It is, however, a basic principle that the Constitution is the ‘fundamental and paramount law of the nation,’ and ‘[i]t is emphatically the province and duty of the judicial department to say what the law is,'” Roberts said, citing the landmark 1803 Supreme Court case Marbury v. Madison that established the principle of judicial review.

“Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery,'” he continued, citing United States v. Peterson from 1809 that determined state legislatures can’t overrule federal courts.

“The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” Roberts wrote.

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