In last week’s June Medical decision, the Supreme Court overturned a Louisiana law requiring hospital admitting privileges for abortionists. Conservatives are understandably dismayed. Many on the right fear that Chief Justice John Roberts is another Anthony Kennedy, Sandra Day O’Connor, or David Souter—justices appointed by Republican presidents who eventually seemed more determined to uphold pet policy preferences on social issues rather than neutrally apply conservative legal principles.
Plenty of conservatives already saw Roberts as a great disappointment in the wake of his votes to uphold the Affordable Care Act and DACA and to interpret “sex” in the 1964 Civil Rights Act as including sexual orientation and gender identity. I did a double-take at those decisions too, but I believe there is a “glass half full” argument to be made.
Roberts has rightly been labeled an institutionalist. Thus, a key question for us is whether Roberts, whose wife Jane Sullivan Roberts has a long association with Feminists for Life, views the survival of Roe v. Wade as good for the nation and the institution of the Supreme Court. It still appears that he does not. Roe was decided by an activist judiciary acting as a super-legislature, and that is not the role Roberts envisions for the Court.
Remember that Roberts wrote a blistering dissent in the gay marriage case Obergefell v. Hodges. There he said clearly, “[T]his Court is not a legislature.” He then grouped Obergefell among two of the Court’s most disdained decisions, Lochner v. New York and Dred Scott v. Sandford, and concluded by declaring that the Constitution “had nothing to do with” the majority’s ruling. Along the way, Roberts also deftly quoted a “thoughtful commentator” who wrote of Roe, “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” That commentator was Ruth Bader Ginsburg.
Roberts is capable of playing four-dimensional chess, and may be positioning things so that Roe comes down in such a way that it is most likely to stay down. To uphold Obamacare, Roberts bent over backward to show deference to Congress. His DACA decision was focused on following proper procedures when reversing your predecessor. In Bostock, Roberts may have joined the opinion late so that he could use his special seniority as Chief Justice to hand the pen to Justice Gorsuch. Otherwise, Ginsburg would have chosen the opinion’s author, and a liberal scribe probably would not have had to bend too far to keep Gorsuch on board. (Gorsuch’s pro-LGBT leanings are no surprise to those who were paying attention to his church, his friends, his record, and his confirmation hearing where the former clerk for Justice Kennedy flatly declared gay-marriage to be “absolutely settled law.”) If Gorsuch drafted the opinion, though, he was more likely to at least acknowledge the importance of religious freedom in this context (as he did) and to center the opinion on textualism (as he did as well, albeit in a manner that was too cute by half).
This does not mean Roberts has turned the four liberals into a principled bloc forever committed to legislative deference, proper procedures, and textualism. The outcome-oriented justices on the left seem more than willing to use whatever legal veneer will get the job done on a particular day. Nevertheless, such decisions do build a bit of intellectual and transactional capital to support overturning Roe within the broader legal community. But the biggest doctrine propping up Roe is stare decisis.
In June Medical, Roberts based his decisive concurring opinion on stare decisis alone. Roberts made clear that he still believed the 2016 case based on a similar Texas law was “wrongly decided.” So, why not right that wrong now? Roberts responded that if stare decisis means anything, it has to mean something where the parallels are striking and the timeframe between decisions is short.
Here, Roberts made clear that he is no Justice Clarence Thomas. Thomas is pushing a frontal assault on stare decisis. Past decisions that are “demonstrably erroneous” when set against the text of the Constitution get no quarter from him. Thomas writes powerfully and directly, but alone. Roberts may be writing in code to a wider audience. He notes that “[n]either party has asked us to reassess the constitutional validity” of Casey v. Planned Parenthood, the 1992 case that “reaffirmed ‘the most central principle of Roe v. Wade,’ ‘a woman’s right to terminate her pregnancy before viability.’” Such statements can sometimes be winks to the legal community suggesting that maybe the question should be asked (as it would have to be to defend the “heartbeat bills” that several states, including Louisiana, have passed).
Roberts declares, quoting a recent decision, that the doctrine of stare decisis is not an “inexorable command.” He then provides a checklist of “additional factors” beyond the basic correctness of the prior decision that the Court should consider before overruling a precedent. Those factors are “its administrability, its fit with subsequent factual and legal developments, and the reliance interests that the precedent has engendered.”
Roberts also makes the counterintuitive case that a reversal can sometimes be more consistent with stare decisis than a “mechanical formula of adherence to the latest decision.” Here, he comes a bit closer to Thomas and observes that “[r]emaining true to an ‘intrinsically sounder’ doctrine established in prior cases better serves the values of stare decisis than would following the recent departure.” In short, one can argue that Roberts has invited a challenge to Roe/Casey and provided the map to his vote.
Of course, in the long run it may not matter if Roberts reverses Roe after making the case for stare decisis. Liberals love the doctrine except when it works against them. Bowers v. Hardwick was a 1986 case that upheld the constitutionality of state sodomy laws. It was reversed in 2003 by Lawrence v. Texas with little of the concern for stare decisis evinced when preserving Roe in Casey.
“I do not myself believe in rigid adherence to stare decisis in constitutional cases,” wrote Justice Antonin Scalia in his Lawrence dissent, “but I do believe that we should be consistent rather than manipulative in invoking the doctrine.” Roberts is seeking to be consistent. In June Medical, he could have taken a limb off of Roe. He chose not to, but he may yet bring the entire tree down. If so, Roberts will do it in what he sees as the right way.
John Murdock is an attorney who writes from Boise, Idaho.
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