Chief Justice Roberts’s deciding vote in June Medical Services v. Russo against Louisiana’s admitting-privileges law for doctors performing abortions rests squarely on his conclusion that stare decisis—the legal doctrine of respect for precedent—requires that result. Specifically, even as he reiterates his belief that the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt was “wrongly decided,” Roberts determines that the Louisiana law is “nearly identical” to the Texas law that the Court invalidated in Whole Woman’s Health and that it “burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous.”
Roberts’s assertion that stare decisis requires his vote against the Louisiana law is difficult to take seriously.
As Justice Alito spells out in his dissent, the majority’s decision in Whole Woman’s Health was intensely fact-dependent. Indeed, it was on the basis of “changed circumstances” that the majority held that the post-enforcement challenge that it addressed did not involve the same claim as the pre-enforcement facial challenge that plaintiffs had first pursued and lost (and was therefore not barred under principles of res judicata). In June Medical, the plaintiffs were making a pre-enforcement challenge to Louisiana’s law. The district court’s factual findings were therefore little more than predictions about what the effects of the law would be, and, as Alito emphasizes, one of its key findings “was based on a fundamentally flawed test” regarding the “good faith” of abortion-clinic doctors in seeking admitting privileges at nearby hospitals. (See Alito dissent at 12-14; see also pp. 15-24 (evidence in record doesn’t show that doctors made serious efforts to obtain privileges.)
Further, even as Justice Breyer in his plurality opinion repeats the balancing test that he set forth in his majority opinion in Whole Woman’s Health, Roberts devotes pages to arguing that Breyer doesn’t really mean what he says in either case and that Breyer’s opinions therefore aren’t really a departure from the undue-burden standard set forth in Casey. (Roberts opinion at 5-11.) Roberts won’t take Breyer at his word because the precedential force of Whole Woman’s Health would be much weaker if Whole Woman’s Health itself departed from Casey.
More broadly, Roberts had never before applied such a wooden view of stare decisis. Indeed, as Ilya Shapiro discusses here, Roberts’s previous decisions to overturn precedents that were “much older and more entrenched” make his “capricious application of stare decisis [in June Medical] startling.”
Roberts tries to invoke Edmund Burke in expounding his position on stare decisis:
This principle [of stare decisis] 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. Because the “private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France 110 (1790).
But as Burke scholar Yuval Levin explains, Roberts badly botches Burke:
Burke described precedents as “one ground, though only one ground, of legal argument,” and said that before they could be treated as authoritative they needed to be tested against five crucial criteria:
“They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.”
The Chief Justice did not refer to any such criteria in thinking through his defense of a decision he disagreed with just four years ago. And if he had, it isn’t likely that his concurrence today would have withstood scrutiny under them.
Further, as Adrian Vermeule points out, Roberts’s faux “judicial Burkeanism” collapses on itself:
If the very first decision freezes the law forever, obliging all subsequent Justices to put aside their disagreements permanently in the name of stare decisis, then the “bank and capital of nations and of ages” shrinks radically. The only depositors to the bank will be the Justices in the initial majority, which means in practice that a majority of only one or two will frequently determine the law forevermore…. [T]he effect of the Chief’s approach is to require Burkean Justices to conform to the initial, maximally arrogant decision…. The self-undermining approach of the Chief’s concurrence, then, actually embodies a kind of judicial hubris cloaked in the garb of humility.