On Thursday, a Texas state Judge ruled Texas abortion law’s enforcement mechanism unconstitutional, but then unbelievably did not issue an injunction.
The status quo here is Roe v. Wade and Casey v. Planned Parenthood: a woman has a constitutional right to make reproductive decisions for herself in consultation with her medical provider, and it is the duty of the court to preserve the status quo, Supreme Court precedent, over a state law that the court has found unconstitutional.
The enforcement mechanism for Texas’s abortion ban, which is the most restrictive in the nation and effectively outlaws the procedure, violates the Texas constitution, a state judge ruled Thursday.
While a win for abortion rights advocates, the narrow decision by District Judge David Peeples of Austin does not include an injunction that would halt litigation against doctors or others who “aid or abet” an abortion. Texas Right to Life, an antiabortion group that supported the legislation, said it will appeal the ruling. Meanwhile, according to abortion providers, the law, known as S.B. 8, remains in effect, continuing a near-total ban on abortion before many people know they’re pregnant at six weeks.
A spokeswoman for Whole Woman’s Health, which operates four abortion clinics in Texas, said it will not resume services until an injunction is granted.
“We are so grateful to Judge Peeples for his ruling today,” Jackie Dilworth shared in an emailed statement. “We couldn’t agree more: SB 8 IS UNCONSTITUTIONAL.”
The law’s teeth, a $10,000 [bounty] to be paid by the defendant for any successful [vigilante] lawsuit brought against an abortion provider, is unconstitutional for several reasons, according to the judge: Authority would be in the hands of private citizens, including people unaffected by abortions who cannot take money from a person who hasn’t harmed them in any way. The lawsuits stemming from the ban would also subvert due process, Peeples wrote.
[P]eeples ruled the state’s courts should not enforce the law’s use of lawsuits to delegate authority.
The Texas law is plainly modeled after the Fugitive Slave Acts, which Congress repealed after the Civil War. The lawyers who crafted this law for vigilantism against clinics providing services to women exercising their constitutional rights should be disciplined and sanctioned. This offends the rule of law.
On Friday, a divided U.S. Supreme Court did the state court one better with a decision that will rank among the worst decisions ever issued by the U.S. Supreme Court. For the true depravity of this radical decision, you must read the dissenting opinions from Chief Justice John Roberts and Justice Sonia Sotomayor.
The Washington Post reports, Supreme Court says Texas abortion providers may proceed with challenge of six-week ban, leaves law in effect for now:
The Supreme Court on Friday left in place a Texas law that bans most abortions after six weeks, and provided only a narrow path for providers to challenge in federal court what is the nation’s most restrictive law on the procedure.
The court’s splintered decision allows the providers to return to a district judge who once blocked the law, saying it violated the constitutional right to abortion. But the decision limited the relief in a way that lawyers said probably makes it impossible to suspend the law while the legal battle continues.
Marc Hearron, who argued the case for the Center for Reproductive Rights, told reporters in a call that the majority decision essentially “greenlit” the law, making a statewide injunction impossible and encouraging other states to follow suit.
Others said the decision could be a sign as the Supreme Court also considers this term Mississippi’s request to overturn Roe v. Wade, the 1973 decision that guaranteed a constitutional right to abortion.
[F]riday’s decision returning the case to a lower court restarts a legal process that has seen the law remain in effect since Sept. 1, when the Supreme Court’s five most conservative members refused to step in to block it.
The same group — Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — turned down the renewed request.
But all except Thomas [you scarecrow, are the scariest of all] said a lawsuit could continue against a small group of Texas licensing officials who could have a role in enforcing the law, known as S.B. 8.
Thomas, an avowed critic of the court’s abortion jurisprudence, wrote that he would not have allowed the lawsuit to continue.
* * *
Chief Justice John G. Roberts Jr., writing for himself and the court’s three liberals, saw the law as an attack on the authority of the Supreme Court.
“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” Roberts wrote, adding that “the clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.”
Justice Sonia Sotomayor issued a blistering rebuttal to her colleagues’ refusal to block the law.
“The Court should have put an end to this madness months ago, before S.B.8 first went into effect,” wrote Sotomayor, who was joined in the opinion by fellow liberal justices Stephen G. Breyer and Elena Kagan.
The court’s refusal to block the law “betrays not only the citizens of Texas, but also our constitutional system of government,” she wrote.
More: Sotomayor Blasts Supreme Court’s Right Wing: ‘Should Have Put an End to This Madness Months Ago’:
Justice Sotomayor made clear the Court should have killed SB 8 before it even went into effect.
“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” wrote Sotomayor in her dissent. “It failed to do so then, and it fails again today.”
“I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review,” she continued, accusing the right wing jurists of “effectively invit[ing] other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”
Sotomayor's dissent is extraordinary: She compares S.B. 8 to "the philosophy of John C. Calhoun, a virulent defender of the slaveholding South," who supported state nullification of federal laws. https://t.co/QIMkZuq2IS pic.twitter.com/IT8Ll1dZDv
— Mark Joseph Stern (@mjs_DC) December 10, 2021
Note: Vice President John C. Calhoun was a strong proponent of the interposition, nullification and secession doctrines which led to the Nullification Crisis (1832-33), and served as the intellectual foundation for the South to secede from the Union in 1860-61, resulting in Civil War. The doctines have long been discredited in law, but have enjoyed a revival among certain conservatives. Keep in mind that Texas has an active secessionist movement. Texas can’t legally secede from the U.S., despite popular myth.
Supreme Court reporter Ian Millhiser explains, Don’t be fooled: The Supreme Court’s Texas abortion decision is a big defeat for Roe v. Wade:
On first glance, it would be easy to see the Supreme Court’s decision Friday in Whole Woman’s Health v. Jackson as a win for abortion rights. It would also be wrong.
More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.
The specific question in Jackson is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch’s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.
The upshot of this decision is that, while the abortion provider plaintiffs in Jackson may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they plan in enforcing the law. The most important provisions of the law — the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so — will most likely remain in effect.
Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. And the implications of this case could stretch far beyond abortion cases.
SB 8 was written for the very purpose of evading judicial review, and Jackson largely blesses that tactic. As Justice Sonia Sotomayor writes in dissent, Gorsuch’s opinion “leaves all manner of constitutional rights more vulnerable than ever before.” If states can use an SB 8-style law to nullify the constitutional right to an abortion, they could very well use it to nullify any other constitutional right.
How SB 8 dodges judicial review
SB 8, as Sotomayor explained in a September opinion, was “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”
Under the Supreme Court’s interpretation of the Constitution in Planned Parenthood v. Casey (1992), “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” which occurs around the 24th week of pregnancy. But the Constitution is not a self-executing document. Typically, someone who believes that a state is violating their constitutional rights must obtain a court order mandating the state’s compliance. SB 8 seeks to thwart that process by making it nearly impossible to challenge the law.
Normally, private plaintiffs can’t sue a state directly in federal court — but they can sue the state official tasked with enforcing an unconstitutional law. SB 8 seeks to exploit this structure by forbidding any “officer or employee of a state or local governmental entity” in Texas from enforcing the state’s anti-abortion law. Instead, the law may only be enforced through private lawsuits.
Such lawsuits may be filed by “any person” who is not an employee of the state against anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant — and there is no upper limit on this bounty.
Thus, the idea behind SB 8 is that no one can challenge the law in federal court because there is no state official who can enforce it. And thus there is no proper defendant.
Why Gorsuch’s opinion is a victory for Texas
The Jackson plaintiffs argued that there are, in fact, several state officials who are charged with enforcing SB 8. Most importantly, they sued a state court judge and the clerk of a state court — the idea being that lawsuits seeking a bounty under SB 8 cannot move forward unless a judge hears the case and a clerk performs certain administrative tasks.
But Gorsuch’s opinion holds that suits against these judges and clerks may not move forward. Indeed, Gorsuch audaciously claims that allowing a lawsuit to proceed against state court officials tasked with enforcing a law that was designed to nullify the Constitution would lead to a slippery slope.
“If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law,” Gorsuch writes, “what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws?”
That said, Gorsuch’s opinion does allow the plaintiffs’ suit to move forward against a list of state health officials, including the executive directors of the state’s medical, nursing, and pharmaceutical boards. These officials, Gorsuch explains, do play a small role in enforcing SB 8. “Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8.”
So that means the plaintiffs may seek a court order forbidding these officials from moving forward with such an enforcement action. But so what?
Typically, when a federal court wants to halt a state law that violates the Constitution, it issues an order known as an injunction, which forbids the relevant state officials from enforcing that law. But injunctions typically cannot be issued against someone who is not a party to a lawsuit.
Under Gorsuch’s opinion, the only remaining defendants in the SB 8 litigation will be the smattering of health officials tasked with bringing enforcement actions against licensed health providers who violate SB 8. The state court judges and clerks who hear SB 8 lawsuits seeking a bounty from abortion providers are no longer a party to this litigation, and therefore cannot be enjoined.
(It’s theoretically possible that someone might bring a suit seeking to block an individual SB 8 plaintiff from filing a lawsuit. But such a suit would likely run into a similar problem — an injunction against that plaintiff wouldn’t apply to other potential plaintiffs.)
A federal court, in other words, isn’t allowed to block the most important parts of SB 8 — the part allowing “any person” to seek a bounty from an abortion provider, and the part allowing state court judges to order providers to pay such a bounty. The Texas legislature, moreover, could potentially shut down federal lawsuits challenging SB 8 altogether, simply by repealing the provision of state law that permits health officials to bring enforcement proceedings against people who violate it.
So the bottom line is that Texas won. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.
Five radical Republican Supreme Court Justices just recognized state nullification of federal law, i.e., Supreme Court precedent, in violation of the Constitution’s Supremacy Clause, and longstanding Supreme Court precedents rejecting the interposition and nullification doctrines. They are taking us back 156 years to the end of the Civil War, which put an end to these discredited doctrines once and for all – or so we thought.
They are opening the door for states to nullify other federal civil rights laws on the basis of race, sex, national origin, religion, sexual identity or preference. No one’s rights are secure from this radical Republican Supreme Court.
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Now that this radical Republican Supreme Court is reviving the long discredited theory of nullification of federal law, Charles Blow of the New York Times writes, “We’re Edging Closer to Civil War”, https://www.nytimes.com/2021/12/12/opinion/abortion-rights-america.html
(excerpt)
In a dissent on Friday, Justice Sonia Sotomayor wrote: “This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.”
I found the invocation of South Carolina’s Calhoun striking. Yes, he was a strong believer in nullification, the idea that states could nullify federal laws, but he was also a raging racist who went further than the slave owners who saw slavery as a “necessary evil,” seeing it instead as a positive good.
In 1837, Calhoun railed in a speech on the Senate floor that slavery had “grown up with our society and institutions and is so interwoven with them that to destroy it would be to destroy us as a people.”
[He] would reiterate that slavery was, “instead of an evil, a good — a positive good.”
In fact, Calhoun’s stance on slavery and states’ rights was so severe that he has been called the father of secession and the man who started the Civil War, even though he died 11 years before the war commenced.
In Calhoun’s view, the states had the right to control and oppress Black bodies as they saw fit, regardless of any actions to the contrary on the federal level. States, he felt, should be able to choose whether or not they wanted slavery.
I see too many uneasy parallels between what was happening nearly 200 years ago and what is happening now. I see this country on the verge of another civil war, as the Calhounian impulse is reborn.
There are enormous, obvious differences, of course. The civil war I see is not the kind that would leave hundreds of thousands of young men dead in combat. That is not to say that we aren’t seeing spates of violence but rather that this new war will be fought in courts, statehouses and ballot boxes, rather than in the fields.
And this war won’t be only about the subjugation of Black people but also about the subjugation of all who challenge the white racist patriarchy.
It will seek to push back against all the “others”: Black people, immigrants, Muslims, Jews, L.G.B.T.Q. people and, yes, women, particularly liberal ones.
In some ways, the abortion battle now being waged in the courts is a test case. Can the states make an argument that a civil right can be reversed on the state level? Can they make the case that all that the Constitution has not explicitly spelled out should be reserved for the states?
[A]ll of us should be very worried about what we see happening with these abortion cases — not just women who might need abortions or relatives and friends of women who might need them.
We should worry about whether or not we are at an inflection point for an age of regression.
No matter how hard all you liberal media con women try you cannot rationalize murder and that is what a human abortion is yesterday, today, and tomorrow.
Disagree. There is no equivalence between murder and abortion. That is a leap that fundamentalists make based on your religious convictions and dogma (which does not even have much to it in terms of Biblical exegesis nor historical practice), not based in science, law, ethics nor reason. I reject your premise entirely, and your mere assertion is not at all convincing to me, and, I suspect, very few here.
How is your religious conviction relevant to what the Supreme Court actually ruled here? Five radical Republican Justices essentially revived a long-dead theory of nullification of federal laws by states, an issue the Civil War put to rest with the bloodiest war in American history. As the dissenters made clear, no Supreme Court precedent – and I would add no federal civil rights (Bill of Rights) of any citizen – are safe under this opinion. These radical Republican Justices are ignoring the Supremacy Clause of the Constitution and our system of federalism to open the door to taking away the civil rights of others. You would do well to reacquaint yourself with the poem by Martin Niemöller, “Fist they Came.” To paraphrase here, Fist they came for the rights of women, and I did not speak out—because I was not a woman. Then they came for me—and there was no one left to speak for me.”
Ruth Marcus writes, “The Supreme Court’s Texas abortion ruling reveals the conservative majority’s radicalism”, https://www.washingtonpost.com/opinions/2021/12/11/supreme-court-radical-texas-abortion-ruling/
The decision in Whole Woman’s Health v. Jackson is no victory for the women of Texas. It represents the latest and perhaps most alarming indication yet of just how radical this new conservative majority is. And as the four dissenters — including Chief Justice John G. Roberts Jr. — warned, it presents a threat to the rule of law and the Constitution, not just in Texas but also nationwide.
[F]or more than three months now, women in Texas have been denied the ability to exercise what remains, at least for the moment, of their constitutional right. It is hard, even if the district judge overseeing the case again finds a way to enjoin the law, to see the ultra-conservative U.S. Court of Appeals for the 5th Circuit permitting that to stand.
[B]ut that is not the worst part. The worst part isn’t what the conservative majority is allowing Texas to do to the constitutional rights of women, although that is terrible. The worst part — truly, the most shocking part — is what the majority is doing to its own authority, and the authority of all federal courts presented with claims that state laws violate constitutional rights.
[T]he Nov. 1 oral argument did not foreshadow this extreme outcome. It sounded then as if at least a few of the conservatives, in particular Justices Brett M. Kavanaugh and Amy Coney Barrett, understood the threat to the court’s own authority, and would rally, if not to protect abortion rights, at least to defend the court’s integrity. As the Justice Department argued in its brief challenging the Texas law, “If Texas is right, no decision of this Court is safe.” (The court, with Sotomayor dissenting, dismissed the Justice Department’s separate challenge to the case without issuing a decision.)
Kavanaugh expressed well-founded anxiety that if the Texas abortion dodge was allowed, others, perhaps less palatable to conservatives, would be sure to follow — blue states outsourcing enforcement of laws limiting gun possession or infringing on religious freedom. Barrett worried about whether suing to block the law in state court would be effective. But when the final ruling was issued, those qualms were nowhere to be heard.
Perhaps the best way to comprehend the danger posed by this decision is to heed the words of the chief justice. Roberts quoted ominously from an 1809 ruling: “If 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.” And Roberts, in his own words, added, “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.”
The chief justice is a stalwart conservative. He is no supporter of abortion rights. He is not a man given to hyperbole. When he warns that his colleagues are allowing the Constitution to be turned into a “solemn mockery,” we should not only listen, we should tremble for the future.
The Washington Post has more on the posture of the Texas lawsuits at this point, “Supreme Court says Texas abortion providers may proceed with challenge of six-week ban, leaves law in effect for now”, https://www.washingtonpost.com/politics/courts_law/supreme-court-texas-abortion-ban/2021/12/10/de0ade80-59c5-11ec-a808-3197a22b19fa_story.html
[A] state judge on Thursday had ruled on the law, finding parts of it unconstitutional.
The state is already appealing that decision, and it is unclear how long it would take to move through the Texas legal process.
The federal case presumably returns to U.S. District Judge Robert L. Pitman, who previously rejected a request from Texas officials to dismiss the lawsuit from abortion providers and scheduled a hearing to consider whether to block the six-week ban before it took effect.
But he was preempted by the [radical Republican] U.S. Court of Appeals for the 5th Circuit, which called off the hearing pending further review and declined to halt the law.
In a separate proceeding brought by the Biden administration, Pitman characterized the six-week ban as an “unprecedented and aggressive scheme to deprive [Texas’s] citizens of a significant and well-established constitutional right,” adding that he would not “sanction one more day of this offensive deprivation of such an important right.”
But Pitman’s options are narrowed by the Supreme Court’s Friday decision.
The Supreme Court on Nov. 1 also reviewed the Biden administration case brought against the state of Texas. But the justices in an 8-to-1 vote Friday dismissed it in the court’s parlance as “improvidently granted.” Sotomayor dissented from that decision.
Anthony Coley, a spokesman for the Justice Department, said in a statement that the administration became involved in the case because Texas’s law “was specifically designed to deprive Americans of their constitutional rights while evading judicial review.” The department, Coley said, “will continue our efforts in the lower courts to protect the rights of women and uphold the Constitution.”
Supreme Court reporter Jeremy Stahl writes, “If John Roberts Really Wants to Save the Court, He Should Retire”, https://slate.com/news-and-politics/2021/12/john-roberts-retirement-abortion-supreme-court.html
Chief Justice John Roberts sounds distraught. After Friday’s ruling by his five fellow conservatives on the Supreme Court allowing Texas’ S.B. 8 bounty system to stand for now, Roberts wrote that his colleagues had pushed the entire system of judicial review to the precipice of disaster.
[T]he chief justice is not exaggerating. By blessing even an altered version of Texas’ bounty-based scheme to upend Roe v. Wade, the court’s five ultraconservatives are clearly opening the door for state nullification of other rights. That issue itself came up during oral arguments, as well as in part of an amicus brief by a guns right group that feared liberal states might put constitutional rights cherished by conservatives, such as virtually unlimited Second Amendment rights, in the crosshairs.
[R]oberts, though, is an independent actor. Judged by his previous lurches—however mildly—to the middle, the chief justice appears very much to care about the court’s collapsing public legitimacy. And, again, if you read the words that he wrote in his concurring opinion in the S.B. 8 case, he also has genuine fears not just about how all this slash and burn will play with the public, but also about what it means for our entire “constitutional system.”
If Roberts does actually mean all those dire warnings in his desperate opinion on Friday, then he does have one option that would go a significant way towards curing many of the concerns he professes to have about the court’s legitimacy, and the potential nullification of its rulings, and the status of our very republican structure: Roberts could retire.
I remember shortly after Roberts ascended to Chief Justice he wasn’t happy about the pay. Liberals responded if that was such an issue he could always go back in to private or corporate practice. Well now, here’s his golden opportunity…
OT: RIP Michael Nesmith, the most talented of the “pre-fab four”. One of his best solo efforts and a well done video: https://www.youtube.com/watch?v=MxALH_3qadg
Supreme Court reporter Dahlia Lithwick writes, “John Roberts Has Lost Control”, https://slate.com/news-and-politics/2021/12/texas-abortion-john-roberts-lost-control-supreme-court.html
The chief justice, concurring in part and dissenting in part, pointed out that the purpose of the law was to evade judicial review: “Texas has passed a law banning abortions after roughly six weeks of pregnancy. That law is contrary to this Court’s decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.” He describes Texas’ enforcement mechanisms as “an array of stratagems, designed to shield its unconstitutional law from judicial review.” He goes on to note that “these provisions, among others, effectively chill the provision of abortions in Texas.” All of these statements are facts. To address the problems they lay out, he would add the attorney general and a state court clerk back to the list of folks who could properly be sued.
The chief justice’s opinion closes with this grim warning:
The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. 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.” 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.” 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.
His statement is joined by the court’s three liberals.
Perhaps now is as good a time as any to put to rest the soothing notion, floated last spring, of a 3–3–3 court, with a temperate and amiable Brett Kavanaugh as the median justice and a youthful Amy Coney Barrett inclined to pump the brakes on the most radical elements of the Federalist Society’s pet projects. Neither Barrett nor Kavanaugh appears to be swayed by the chief justice’s concerns for institutional legitimacy or even, in fact, institutional supremacy. If red states want to go ahead and choke off federally protected rights, they have been given the comprehensive road map. We will certainly see red states do precisely this.
[T]he problem at the heart of the perception of John Roberts’ moderating influence on the court was that it was always about public perception. When he was still theoretically in charge of the conservative supermajority, his approach was in fact that it could do anything, so long as it didn’t look too radical. Some of us came to confuse that with moderation. But public perception is malleable and can be measured on a sliding scale. Five justices want you to call a narrow loss a “win” for abortion rights, and they want you to think of state nullification as “novel.” They will keep saying that over and over until one concedes that it’s true, and when Dobbs comes down this summer, they will tell you there is nothing radical in doing away with the right to choose. They will assume that if you accepted nullification in September, you’ll be open to overt bans come spring.
Roberts is credited with soothing us that Supreme Court justices are never doing anything more than calling balls and strikes. But under his watch, a conservative supermajority has changed the strike zone, corked the bats, and set the whole infield on fire—all while telling us that the game remains the same. They managed all that with the help of one Chief Justice John Roberts. What this tiny, narrow, wholly radical ruling reveals is that Roberts is now alone in his concern that the fans might soon figure all this out. His problem? He’s not the one calling the game anymore.