NRPLUS MEMBER ARTICLE T here is a saying — perhaps as old as Aristotle — that courage is the first virtue, because it makes all the others possible. We usually associate courage (or its absence) with leadership by elected officials: There are times when it is hard to stand up for your principles, to stand against your own party, or both. From judges, we are told, the important thing is to follow, not to lead: to have the ascetic self-discipline to apply the Constitution and laws as written, and not to put your own policy preferences above the letter of the law. The right ideas and the right priorities matter more than character. A good brain beats a good heart.
The conservative legal establishment has long been particularly enamored of this ideal: the umpire calmly calling balls and strikes. It is a very important virtue. But it is not the first virtue. An umpire who can be cowed by the crowd will not call the same strike zone for both teams. Without courage, good ideas about the law are just empty words on a page. Without courage, even the clearest-written rights are empty promises, the plainest limitations on power are easily overwhelmed, and the entire project of rule by written law becomes just another hollow formality.
Two of today’s Supreme Court decisions, on abortion and separation of powers, are further evidence of this. Chief Justice John Roberts has yet again shown the absence of courage that has so often undermined his Court. Roberts’s repeated demonstrations of lack of courage are rapidly becoming a threat to the Court itself, and to the conservative legal project.
June Medical: Precedents That Rewrite Themselves
First up, we have June Medical Services L.L.C. v. Russo, which by a 5–4 vote struck down a Louisiana abortion-clinic regulation challenged by the clinics. Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch would have upheld the Louisiana law, but Chief Justice Roberts sided with the Court’s four liberals, claiming that his hands were tied by precedent.
In the 2016 case Whole Woman’s Health v. Hellerstedt, the Court ruled 5–3 against a Texas abortion law that required abortion providers to have admitting privileges at a hospital within 30 miles. States routinely impose such requirements on the practice of medicine, especially invasive or surgical procedures. As Justice Gorsuch observed, the Louisiana law “tracks longstanding state laws governing physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers.” The Court in both Whole Woman’s Health and June Medical ruled that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right” to an abortion. Yet what the Court defines as an “unnecessary” requirement would be uncontroversially legal for any other medical procedure under the sun, and the “constitutional right” itself is, of course, nowhere even vaguely mentioned in the actual Constitution.
Moreover, in a normal court case, a party who loses a lawsuit can’t just file a do-over. But that is what the Court’s four liberals — then joined by Justice Kennedy — allowed in Whole Woman’s Health, not binding the clinics to a decision against them on the same issue in a prior case. Justice Alito’s dissent at the time, joined by Chief Justice Roberts, called out the Court’s Whole Woman’s Health decision for “simply disregard[ing] basic rules that apply in all other cases.”
Four years later, Roberts gave the liberals the deference they would not apply themselves, writing, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it. . . . The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.” Had like cases been treated alike by the Court’s liberals, the Whole Woman’s Health majority opinion would never have been written. What’s mine is mine, what’s yours is negotiable.
There are, as Roberts notes, a variety of arguments for constitutional stare decisis, but it is not an ironclad rule. As Justice Kavanaugh recently emphasized in the unanimous-jury case (Ramos v. Louisiana), the central question should always be whether the earlier decision was wrong. One of the arguments often raised in favor of stare decisis is that courts should not unsettle expectations created by longstanding decisions. Here, Whole Woman’s Health was so recently decided that the June Medical case had already been tried when the decision came down.
Worse, stare decisis is supposed to promote stability in the law by adhering to consistent and predictable rules, yet the opinions striking down the Louisiana law did no such thing. Roberts refused to join Justice Breyer’s opinion, but by joining its outcome he prevented the Court’s conservatives from doing anything to keep the Court from constantly rewriting its own rules. Abortion law is, for now, governed by the 1992 Planned Parenthood v. Casey decision, which itself upheld Roe v. Wade on stare decisis grounds while completely rewriting its theoretical basis and its practical guidance for lower courts. As Roberts noted today, Casey asked whether an abortion law imposed an undue burden, but the Court in Whole Woman’s Health — and the plurality today — changed that rule to make it a balancing test that reviewed the pros and cons of the law. Roberts reiterated today that Whole Woman’s Health therefore departs from Casey, and asks courts to apply a test they are not competent to administer:
In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other [quoting Justice Kennedy in Casey]. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like “judging whether a particular line is longer than a particular rock is heavy” [quoting Justice Antonin Scalia]. Pretending that we could pull that off would require us to act as legislators, not judges. . . . Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts. On the contrary, we have explained that the traditional rule that state and federal legislatures have wide discretion to pass legislation in areas where there is medical and scientific uncertainty is consistent with Casey. (Quotations and citations omitted).
That last line is especially poignant, as Roberts cited Gonzales v. Carhart, a 2007 decision upholding a federal partial-birth abortion ban and declining to follow a 2000 decision striking down Nebraska’s ban. Roberts joined that opinion. Today, Roberts clung to the formal claim that “we should respect the statement in Whole Woman’s Health that it was applying the undue burden standard of Casey” even after he just explained why that was not what the liberals were doing.
Justice Gorsuch called out the four liberals’ analysis for being “the judicial version of a hunter’s stew: Throw in anything that looks interesting, stir, and season to taste,” and called out Roberts himself for noticing this but doing nothing about it. The Court’s actual weighing of the costs and benefits of the Louisiana law, as Gorsuch observed, “shar[ed] virtually nothing about the facts that led the legislature to [pass it.] The law might as well have fallen from the sky. . . . Nothing in [Whole Woman’s Health] suggested that its conclusions about the costs and benefits of the Texas statute were universal principles of law, medicine, or economics true in all places and at all times.” But the Court simply blew by the independent factfinding of the Louisiana state legislature. And, as the dissenters further noted, it also required a good deal of other mental gymnastics with the rules of appellate review and standing to sue. As Gorsuch concluded, the chief justice’s impulse may be to proceed modestly, but he just ends up empowering those who are not so constrained:
To arrive at today’s result, rules must be brushed aside and shortcuts taken. While [Roberts’s] concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us. . . . Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation.
Even with the evidence staring him in the face that the Court is rewriting its own standards on the fly, the chief called a ball a strike.
Selia Law: Saving Congress from Itself
In the second case, Selia Law LLC v. Consumer Financial Protection Bureau, the chief justice wrote the Court’s opinion declaring that Congress in the 2010 Dodd-Frank Act had violated the separation of powers by placing the CFPB’s head beyond the reach of presidents to remove at will. This is an important milestone in a longstanding fight by legal conservatives, most prominently Justice Scalia, to restore presidential control and accountability over the executive branch and constrain the growth of a “deep state” that answers to no voter. It is also an epic embarrassment for Elizabeth Warren, who designed the CFPB, and President Obama, who signed Dodd-Frank and has yet again been found by the Court to have done violence to the structure of our Constitution.
As Justice Scalia was fond of observing, separation of powers is, itself, the first of all constitutional rules: So long as we have a government of limited and divided powers, it is possible to enforce particular guarantees of individual rights, which appear in the constitutions of many nations that fail to enforce them.
But Roberts pulled up short of actually concluding that an agency created in violation of the Constitution lacked the power to compel the citizenry. That is what Justices Thomas and Gorsuch would have done here. Normally, if Congress passes an unconstitutional statute, it should be struck down as a whole unless Congress has written instructions on how to sever parts that are unlawful. Here, Congress did just that — for other specific parts of the 1,100-page Dodd-Frank Act, but not one particular to the CFPB. Relying on Dodd-Frank’s general severability clause, Roberts (joined this time by Alito and Kavanaugh) took the narrowest possible “scalpel rather than a bulldozer” to make the CFPB director removable, disregarding the question of whether Congress would really have granted such broad powers to the agency if it had been placed under direct political control.
Normally, if a government enforcement proceeding is started by people acting without authority, the whole proceeding should be thrown out and left to a properly constituted authority. Roberts, however, instead decided that the remedy for the target of CFPB action was . . . maybe nothing, because the CFPB kept the case against Selia Law going under an acting director who was removable at will. In other words, much as in the recent DACA decision, a power illegally granted remains in force because the chief justice went out of his way to save it.
The Voters Are Not Fools
It is a mistake to compare Roberts to past disappointing Republican appointees to the Court. Unlike William Brennan or John Paul Stevens, Roberts was not appointed as an obvious sop to the opposing party. Unlike David Souter, he is not a liberal who snuck on the Court without adequate vetting. Unlike Earl Warren, Warren Burger, or Sandra Day O’Connor, he is a serious legal technician, not a politician. Unlike Harry Blackmun, he is not a simpleton seduced by stronger personalities within the Court. The chief is the opposite of Anthony Kennedy, whose sin was the hubris to maximize the power of the federal courts and his own votes in nearly every case. Roberts remains what he was before his appointment, a conventional conservative legal theorist who believes in many of the doctrines and judicial philosophies one would hear at any Federalist Society gathering.
But courage is lacking. Over and over again, Roberts has failed to follow through on the rule of law. His defenders point to his big-picture vision of judicial modesty and incrementalism: that conservatives should avoid big, wrenching moves, and build small victories in doctrine today that will accumulate to larger ones tomorrow. But in law, as in politics, tomorrow never comes without courage today. Worse, Roberts has on occasion written or joined opinions in big cases that forced large changes (as in the Bostock decision on Title VII) or did violence to doctrine (as in the King v. Burwell decision on Obamacare exchanges) in order to reach results that momentarily appeased the Left. It is all too apparent that Roberts can be cowed by the Democrats’ frequent and noisy threats to pack the courts or otherwise poison their credibility and legitimacy with the public. By caving to such threats, he only invites more of them.
Worse, a movement is beginning to grow among social conservatives to give up on the entire project of stocking the courts with Federalist Society–style originalists and textualists, on the theory that they will simply fold in a tight spot. Roberts is Exhibit A. Senator Josh Hawley issued a shot across the bow a few days ago on this theme regarding Bostock. These voices on the right are arguing openly for a more results-driven jurisprudence — a project that would do violence to the things Roberts cherishes, and would also inevitably be a fight the Right could only lose. Failures of judicial courage can also dispirit conservative voters, as happened in 1992 after Casey. Why labor in the vineyards of politics to appoint judges who know the right thing to do but lack the strength of character to do it?
Many of the Supreme Court’s worst moments have come when its members have chosen a path they wanted to follow, the law be damned. But others have been failures of courage. It was Lincoln and Grant appointees who defanged the guarantees of legal equality passed during Reconstruction. It was Republican appointee Owen Roberts’s “switch in time” that allowed Franklin Roosevelt to bully the Court into abandoning over a century of limited-government precedents and write a constitutional blank check to the New Deal. It was fear of limiting Roosevelt’s popular wartime leadership that led his own appointees to rubber-stamp the internment of Japanese Americans.
Justice Thomas, who dissented from both of today’s failures of courage, has talked about how growing up in a country that refused to enforce the rights it granted on paper formed his view of the judicial role. There is a case to be made, in fact, that Thomas, and not Roberts, should have been made the chief justice in 2006. In any event, the chief could learn a lesson about backbones from the Court’s senior justice.
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