By a 5-4 vote, a fractured Supreme Court Monday struck down Louisiana’s effort to regulate abortion by requiring abortion doctors to have admitting privileges at local hospitals. Chief Justice John Roberts agreed with four liberal justices that the state law imposed a “substantial burden” on a woman’s right to an abortion.
While the decision guarantees that abortion will continue to roil our politics, it may prove an even more important signal of Roberts’ determination to foil President Trump’s agenda to remake the federal courts.
June Medical Services v. Russo displays Roberts in fine form as a legal gymnast. Four years ago, in Whole Women’s Health v. Hellerstedt, the chief justice had voted to uphold an identical law from Texas. He lost that case, however, because Justice Anthony Kennedy joined with the court’s liberal wing – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – to find that the burdens on abortion access outweighed the purported benefits of the regulation.
With President Trump’s 2018 appointment of Brett Kavanaugh to replace the retiring Kennedy, conservatives could have justifiably expected the court to finally discard the substantial burden test, first introduced in 1992 in Planned Parenthood v. Casey.
Trump’s appointment of Justice Neil Gorsuch in 2017 would not have had that effect, because he replaced Justice Antonin Scalia, a fierce foe of Roe. But Trump’s supporters, many of whom voted for him in order to shift the court in a more conservative direction, would have believed that Kavanaugh’s appointment would lead to Roe’s end.
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Those hopes came to a crashing halt Monday. While he refused to join the liberal justices’ opinion in Russo, Roberts voted to strike down the Louisiana law anyway in the interests of adhering to past precedent.
“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote in his concurrence. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
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Roberts still claimed that he remained true to his legal principle. He continues to “believe that the [Texas] case was wrongly decided.” But he said the question was whether to “adhere to it in the present case.”
Conservatives on the court legitimately questioned Roberts’ commitment to the Constitution. In a powerful dissent, Justice Clarence Thomas declared that the court’s claim of stare decisis “does not comport with our judicial duty under Article III, which requires us to faithfully interpret the Constitution.”
Instead, he wrote, “when our prior decisions clearly conflict with the text of the Constitution, we are required to privilege the text over our own precedents.” Because Roe and Casey are based on a “demonstrably erroneous interpretation of the Constitution,” Thomas concluded, “we should not apply them here.”
It is the court's job to uphold the Constitution, not its old cases. If its precedents conflict with the Constitution, it must reverse them, just as it refuses to enforce executive orders or statutes that violate the Constitution.
Roberts has now frustrated President Trump’s efforts to remake the federal courts.
Why would Roberts vote to strike down a law that he believed, only four years ago, was constitutional? His claim to stare decisis proves unconvincing. If Roberts were right, the court should never have decided Brown v. Board of Education, which declared segregation unconstitutional, since it overruled Plessy v. Ferguson. Roberts himself voted just last year to overrule precedents related to the Takings Clause and two years ago against mandatory union dues.
Politics may well explain Roberts’ rush to the pro-abortion side of the court. He has now frustrated President Trump’s efforts to remake the federal courts.
Consider his votes just this term. Roberts has stopped the effort to overrule Roe and Casey Monday. Last week, in Regents of California, he provided the fifth vote to block Trump’s order ending the Obama administration’s Deferred Action for Children and Deferred Action for Parents programs – even though the courts had held the orders unconstitutional. Two weeks ago, in Bostock v. Clayton County, he voted to extend federal anti-discrimination protections in the 1964 Civil Rights Act to gay and transgender employees.
Trump has set records in the speed and number of his appointments to the lower courts, and has chosen conservative nominees unmatched by any previous president in their sterling qualifications and intellect. He has appointed two Supreme Court justices who have generally voted with stalwart conservatives Thomas and Samuel Alito. But it has come to naught with Roberts shifting into the middle, swing position once occupied by Justice Kennedy.
Roberts’ supporters will argue that the chief justice is keeping the court out of politics during an election year. In today’s decision on abortion, he has planted the court in a very popular decision; polls suggest that Americans support a right to abortion but with reasonable limits. He has achieved the same moderation with this month’s immigration and gay rights cases, whose outcomes match the preferences of many.
Roberts may tell himself that by restraining the conservatives on the court and moderating its course, he has removed the Supreme Court as a target for a possible Biden presidency.
But Roberts’ mistake is to play politics at all. If he seeks moderation, he will respond to the political environment, which will only encourage more political efforts to pressure him and the court.
The chief justice tried something like this back in 2012, when states challenged ObamaCare as exceeding the powers of the federal government. After the oral argument, Democratic elected politicians launched unprecedented political attacks on Roberts and the court. According to reports, Roberts flipped his vote to uphold ObamaCare, and in so doing upheld a popular program, but at the price of diluting the Constitution’s careful limits on the balance between Washington, D.C., and the states.
Today’s legal gymnastics may have a similar purpose behind them. But they are a loser’s game.
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By trying to keep the court in a low-profile, moderate position, Roberts forgets that advancing popular programs remains the job of the president and Congress, whom the people elect for that purpose. The court’s role should remain that of enforcing the Constitution against popular wishes – otherwise, we could dispense with a Constitution and just let elections decide all.
By revealing his political concerns, Roberts will only further spur the politicization of the court, the political campaigns to influence the justices, and the circus that has become our confirmation process. By trying to protect the court in the short term, Roberts may well harm it in the long.