NRPLUS MEMBER ARTICLE A year ago, almost to the day, writing for a 5-4 majority, Chief Justice John Roberts upheld the constitutional right of a property owner divested by a local government ordinance to sue for just compensation. The owner in Knick v. Township of Scott had failed to seek compensation in state court before filing her federal lawsuit. That meant her federal case should have been barred under the Court’s 1985 ruling in Williamson County Regional Planning Commission v. Hamilton Bank. But no, reasoned the chief justice. If the justices upheld that precedent to foreclose Ms. Knick’s suit, they would be elevating their own wrongly decided precedent over the Constitution’s prohibition on government takings without just compensation.
Yet Monday, in June Medical Services v. Russo, Roberts clung to stare decisis, the principle of upholding precedent, in order to protect the putative “right” to abortion, a wholesale invention of willful progressive justices that is bereft of constitutional grounding.
There are, of course, four uber legislators on the Court — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — who reliably vote as a bloc whenever doing so is necessary to advance the Left’s agenda or hold ground previously won. Roberts used stare decisis as his rationale for joining them, yet again, on Monday. Together, they denied the state of Louisiana its sovereign power to regulate medical practice in furtherance of its indisputable interest in preserving life.
All five justices relied on Whole Woman’s Health v. Hellerstedt (2016), in which the Court barred the state of Texas from implementing a similar law mandating that abortionists have admitting privileges in a nearby hospital (in the event something goes wrong during the abortion). Roberts had dissented in Whole Woman’s Health because, so poorly reasoned was the decision, he concluded it was flat wrong. Now, however, he insists that stare decisis requires honoring this abortion precedent he knows is wrong.
Stare decisis (Latin for “to stand by things decided,” as Roberts notes) is the judicial doctrine of adherence to precedent — though, as today’s ruling bitterly illustrates, it is better understood as the judicial license to adhere or not adhere depending on what policy result is desired.
Roberts concedes that “stare decisis is not an inexorable command.” His ode to its merits would be hilarious if not for what the new ruling portends. The principle, he says, is “grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them.” So, in their “humility,” the justices elevate over the Constitution’s framework the “right” they have manufactured from whole cloth — courtesy of some dizzying blather about deriving “penumbras” from “emanations.”
Roberts also elides mention of the inconvenience that none of those who first answered “the questions of yesterday” would have thought it possible that the Constitution guaranteed a right to terminate the unborn. And while, last year, he was telling us the takings precedent had to go, even though people had been inured to it for 34 years, today he said the four-year-old abortion precedent had to be preserved — even though there hasn’t been time for societal arrangements to become ingrained, and the question arose precisely because the Court’s abortion jurisprudence is so slipshod.
Note that Roberts had an out here. He could easily have decided that the plaintiffs did not have standing. As Justice Clarence Thomas explains in a withering dissent, the parties objecting to Louisiana’s law were not women whose purported right to abortion was being burdened; they were abortion providers who sought to raise the claim on the women’s behalf. A court does not have jurisdiction unless the parties before it have standing — i.e., unless they are asserting a denial of their own rights. Roberts, moreover, is typically a stickler on this point — the New York Times has described him as “the Supreme Court’s leading proponent of the standing doctrine.”
So he didn’t just protect abortion. He went out of his way to protect it.
The Court’s June Medical Services ruling is not about the law. It is about politics, as these late-June decisions often are. Roberts was fine with dissenting in an abortion case four years ago when there was no chance that his side would prevail. But the Left and the media-Democrat complex would go into meltdown if the Court were to approve significant restrictions on abortion democratically enacted by elected officials. Regardless of what the correct constitutional analysis may be, Roberts is not going to allow himself or the institution under his leadership to be subjected to such condemnation. Conservative condemnation he’ll take in stride, but not the rebuke of the highbrow.
I will repeat what I said a little over a week ago, when Roberts joined the left-wing bloc to prevent President Trump from summarily reversing a lawless immigration policy that President Obama had summarily decreed:
The Supreme Court has demonstrated, yet again, that stacking the tribunal with ostensibly conservative lawyers does not assure conservative results.
Once again, Chief Justice Roberts joined the four-justice liberal bloc to preserve a signal Obama policy achievement. Last time it was Obamacare, this time it’s DACA. Though sold to the Right as a rock-ribbed conservative, Roberts essentially held that a new president may not reverse the last president’s illegal acts in the same peremptory manner in which those acts were imposed. Or, if you prefer, even if Obama himself conceded that he had no authority to issue a decree, Roberts will treat the decree as legitimate law. I wouldn’t bet the ranch that the chief justice would be as solicitous if Trump were to start issuing similar “policy memos” that usurp legislative power, but just imagine what a Biden administration could make of the new dispensation.
… The rights to armed self-defense, life, and religious exercise [cited in recent presidential tweets] are not at stake because of a failure to nominate and confirm reliable conservative jurists. They are at stake because Republicans cling to the fantasy that the Supreme Court is our highest legal institution. In reality, it is a super-legislature: It is the last word on vital policy matters that should be decided democratically; and its members are life-tenured — politically unaccountable even as they do politics rather than law.
Democrats fully grasp that the Court is a political institution. Their supporters demand that they see it as a vehicle for imposing the Left’s policy agenda, their senators conduct confirmation hearings that way, and their judges decide cases that way — whether that requires, in any given case, being a “living Constitution” enthusiast, an originalist, a strict constructionist, a post-sovereign one-worlder, a states’-rights federalist, or a devotee of stare decisis. They do not see the Court as an institution for deciding legal cases under the law; they see it as a tool for achieving results that they can then portray as immutable constitutional mandates.
Republicans, by contrast, strive to confirm putatively conservative lawyers who’ve mastered all the right abstractions about how judges “apply rather than make law.” But the only time they get grilled on precedent is when Democrats badger them on the Left’s favorite rulings, Roe v. Wade in particular, drawing concessions that these decisions are settled law.
That’s the reason why a John Roberts is forever evolving, while a Ruth Bader Ginsburg is unapologetically evolving the rest of us.