June 29, 2020 12:44PM

John Roberts Outsmarts Himself Yet Again

It was a big day at the Supreme Court. While my colleagues comment on AID v. AOSI—an interesting case about the application of the First Amendment to the foreign affiliates of American organizations (background and Cato’s brief)—and Seila Law v. CFPB—on the constitutionality of the single‐​director head of an independent agency (background and Cato’s brief), I want to comment on the one case decided today in which Cato didn’t file.

June Medical Services v. Russo considered a Louisiana regulation requiring doctors who perform abortions to have admitting privileges at a hospital within 30 miles of their abortion clinic. Notably, the state law at issue here was similar to a Texas one that the Supreme Court invalidated in Whole Women’s Health v. Hellerstedt (2016). That case was decided on a 5–3 vote after Justice Scalia’s death, with Justice Anthony Kennedy joining the liberals and Chief Justice John Roberts joining Justices Samuel Alito and Clarence Thomas in dissent.

Cato scholars don’t generally take positions on abortion because libertarians in good faith run the gamut from pro‐​life to pro‐​choice. And we’ve never filed a brief in an abortion case, for that reason but also because the operative legal standard from Planned Parenthood v. Casey (1992), which prohibits regulations that pose an “undue burden” on abortion rights, is inscrutable—possibly the most subjective, political aspect of constitutional jurisprudence. The joke used to be that an “undue burden” was something that gave swing vote Justice Kennedy a headache.

I’m not going to buck that trend now, other than to comment on the odd result of Chief Justice Roberts’s having joined the liberals’ invalidation of the Louisiana law while joining them in the judgment alone on stare decisis grounds. That is, Roberts maintained his disagreement with the holding of Whole Women’s Health, and in a vacuum would’ve upheld the law now, but nevertheless voted against the state in order to respect that earlier precedent—which, again, he considers to be erroneous.

But, setting aside the constitutional merits of the Louisiana law and how close it is to the Texas one that the Court invalidated four years ago, Chief Justice Roberts’s capricious application of stare decisis is startling. After all, stare decisis didn’t stop him from overturning precedent in Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Knick v. Township of Scott (2019), cases in which the precedent was much older and more entrenched, but a very recent close decision in which he dissented apparently carries more weight. There are probably other examples, but those three come immediately to mind.

Mind you, I think Roberts was correct in all those earlier cases, and his concurring exposition of stare decisis in Citizens United was well done. But that doesn’t jibe with what he wrote today or, for that matter, with his vote in Gonzales v. Carhart (2007), which upheld the federal ban on partial‐​birth abortion a mere seven years after the Court invalidated a similar Nebraska ban in Stenberg v. Carhart (2000).

Again, I’m not taking any position here on the merits of the Louisiana law at issue in June Medical, let alone on the viability of Casey and Roe v. Wade (1973), but I’m appalled by this latest example of the chief justice’s unprincipled decision making. Presumably he did what he did to preserve the Court’s legitimacy and extricate it as much as possible from the political debate, especially in an election year. As in every other case where he has done this, however, going back to NFIB v. Sebelius (2012), the Obamacare case, my view is that he has failed on his own terms.

John Roberts ought to stop playing “87‐​dimensional chess” and just call the legal balls and strikes, as he promised to do at his confirmation hearings.