Bench Memos

Law & the Courts

The Chief Justice and Stare Decisis in June Medical—Part 2

What broader lessons might be drawn from Chief Justice Roberts’s invoking—or, if you prefer, hiding behind—stare decisis to justify his vote in June Medical?

One lesson that folks on the Left are drawing from this and other recent votes by Roberts is that bullying him pays big dividends. Whether or not that is right as an explanation for his votes, it’s certainly reasonable.

Indeed, the Chief Justice’s professed concerns over the Supreme Court’s perceived legitimacy might well amount to having a “Kick Me” message tattooed on his forehead. The more the Left squawks, the more the Court’s legitimacy is said to be at stake.

The Court’s legitimacy as an institution ought to be a byproduct of its reasoned decisionmaking and its imperviousness to political influence. But if, as, alas, often appears to be the case, the Chief is instead, consciously or otherwise, deciding how to vote based on whether and how he imagines a case’s result will affect the Court’s legitimacy, he is engaged in a thinly disguised political exercise that empowers his most implacable critics on the Left and that ought to operate to discredit the Court.

Another reasonable lesson to draw is that the Chief is remarkably skittish about confronting what ought to be one of his major tasks: overturning the Roe/Casey regime and restoring abortion policy to the states. The Chief surely knows that it is Roe, more than any other modern ruling, that has politicized the judiciary and deformed American politics.

To be sure, there was little progress that the Chief could make against the Roe/Casey regime while Justice Kennedy was still on the Court. But after Kennedy’s replacement by Justice Kavanaugh, the Chief should have been looking for a good opportunity to begin the process of dismantling Roe. A certiorari petition filed by the state of Indiana in the fall of 2018, raising the question whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus, presented such an opportunity, but the Chief seems to have been part of a dubious compromise to deny review.

So, as was entirely foreseeable, the first abortion case for the reconstituted Roberts Court ended up being June Medical. That case was a much less attractive vehicle for making headway against Roe, and the Chief’s joining with the liberals means that no headway at all was achieved.

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