Why Roberts Sided with Abortion Rights

Is the Chief Justice laying a trap or simply 'calling balls and strikes'?

Yesterday, I tried to parse Chief Justice John Roberts’ rationale for siding with the liberals in a Louisiana abortion case. I did so by actually reading his concurrence. Several legal analysts have weighed in with slightly more cynical but certainly plausible takes.

Ilya Shapiro, writing at CATO (“John Roberts Outsmarts Himself Yet Again“):

[S]etting 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.

Vox’s Ian Milhiser (“Why conservative Chief Justice Roberts just struck down an anti-abortion law“):

The best reading of the Court’s decision in June Medical Services v. Russo is that Roberts just gave the constitutional right to an abortion a potentially very brief reprieve. And he did so largely because Louisiana presented the weakest possible case in June Medical.

[…]

The takeaway from Roberts’s opinion isn’t that the right to an abortion is safe. It’s that Roberts is reluctant to bend the Court’s ordinary procedures to hand abortion opponents a victory in this particular case.

[…]

Roberts opens his opinion by declaring that he still believes that Whole Woman’s Health was “wrongly decided.” He notes that “neither party has asked us to reassess the constitutional validity” of the Court’s seminal abortion rights decision in Planned Parenthood v. Casey (1992) — a hint that, if future litigants directly attack Casey, Roberts will welcome such a challenge. And he spends as much of his opinion attacking Breyer’s approach to this case as he does explaining why he reluctantly voted to honor stare decisis.

[…]

In this sense, Roberts’s opinion harks back to Justice Bryon White’s dissenting opinion in Roe v. Wade (1973) itself, which similarly argued that courts are not competent to weigh the difficult moral questions presented by the abortion debate. “In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ,” White wrote in that dissent, courts should leave the question of abortion rights “with the people and to the political processes the people have devised to govern their affairs.”

So the right to an abortion survives another day, but Roberts’s opinion is less an endorsement of the right than it is a warning that litigants should not overreach. The chief justice is unwilling to overrule a very recent precedent simply because one of his colleagues retired. But that does not mean that he will preserve Roe or Casey when a litigant asks him to overrule those decisions outright.

Slate’s Dahlia Lithwick takes a similar tack (“Roberts Isn’t a Liberal. He’s a Perfectionist Who Wants to Win.“):

Roberts is a capable tactician who understands history, public opinion, and how much pressure any one institution can withstand without breaking. He may also be one of the only sitting justices who understands how the modern news cycle works, and he has managed to surf that cycle flawlessly, this term as in prior years. If he has a superpower, it is that he knows how to do consequential things in small ways, at a moment in which everyone else is swinging for the fences.

[…]

Roberts’ concurrence is classic Roberts—cloak a major blow to the left in what appears to be a small victory for it. Four years ago in Whole Woman’s Health, the court struck down the Texas admitting privileges law by assessing that such a law would constitute an “undue burden” on a woman’s right to terminate a pregnancy—a standard that in Justice Stephen Breyer’s formulation called for a careful balancing of the stated benefits of an abortion restriction against its burdens. Reading Roberts’ concurrence carefully, one sees that in June Medical, he managed to claw back that standard, replacing it with a much more deferential one that asks only whether the proposed regulation is unduly burdensome without requiring any consideration of the benefit. Not only that, he goes further and does essentially what he did in last year’s census case and last week’s challenge to the DACA rescission: He hints that essentially any old pretextual defense of an abortion law will serve; he just doesn’t like when lazy litigants offer up sloppy pretexts.

The problem for Roberts in June Medical is that the state of Louisiana offered up demonstrably bad reasons for insisting on admitting privileges for abortion providers at local hospitals, and then the 5th U.S. Circuit Court of Appeals offered up sloppy reasons for disturbing the findings of the trial court showing that two out of three clinics would close and women would be burdened. As was the case in the census litigation, and the DACA litigation, the outcome here is correct, but one can easily reverse-engineer the chief justice’s opinion to say, “Come back to me with the right road map and I’m all yours,” and in fact, he actually grabs your pencil, flips over the napkin, and sketches the map out at no extra cost.

[…]

One hears constant talk about the death of Roe by a thousand little cuts, but it’s hard to measure what any one of those cuts look like in the daily blender of news coverage. Roberts is, and has always been, a master of doing small things that look like big things, and of making big things look trivial. Whatever else the media does well, identifying those small moments, in the moment, is not always our strong suit.

While I share Shapiro’s frustrating for Roberts’ selective adherence to stare decisis, Lithwick’s analysis strikes me as the most compelling rationale for why that may be so.

We shall, of course, see what happens in other cases. But Roe will soon turn 50 and it’s increasingly settled law. Hell, Casey, which is the framework for modern interpretation, will soon be 30.

Barring the sudden death of Ruth Bader Ginsburg or another liberal justice, this is likely to be as conservative as the Supreme Court gets for a long, long while. Joe Biden is heavily favored to win in November and he should be able to replace the 87-year-old Ginsburg and (by then) 82-year-old Stephen Breyer with decades-younger Justices.

And conservatives Clarence Thomas (72) and Samuel Alito (70) are the next-oldest justices, so it’s not inconceivable that one or both will be replaced within the next eight years. It’s hard at the moment to think of a Republican who will be able to win the White House in 2024, as the electorate is increasingly dominated by younger, less white voters.

The window, therefore, is fast closing for a major reversal of abortion rights.

FILED UNDER: Law and the Courts, Supreme Court, ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mu Yixiao says:

    he should be able to replace the 87-year-old Ginsburg and (by then) 82-year-old Steven Breyer with decades-older Justices.

    Biden is going to put centenarians on the bench??

    2
  2. Jen says:

    I think you mean “decades-younger” justices…at least one would hope! 🙂

    After 50 years, one would think it’d be settled law. I doubt people will ever stop fighting over this issue though.

    3
  3. Modulo Myself says:

    Lithwick is being too clever, I think. The problem for the pro-life side is that there were no good reasons for insisting on admitting privileges other than stopping abortions from happening.
    Everybody gets that they don’t have science or medicine on their side. These are the same people who would be doing gay conversion therapy if they could. The justifications for these regulations were pulled out of nowhere by pretty stupid people who care nothing about the health of actual women. They can try this a million times and they’re going to fail, unless the Court’s logic changes and who is to say it won’t?

    1
  4. de stijl says:

    @Mu Yixiao:

    In Stellaris there are techs you can research and policies you can enact to extend the lifespan of your leaders.

    In my current run I have a feline leader who is 137 years old and she is kicking so much ass. Her trait is fleet capacity + 20%.

    When she eventually dies my economy will crash in energy due to fleet over capacity debuffs.

    Don’t worry. I have a plan.

    3
  5. Teve says:

    When the religious right lost the fight against desegregation and switched to abortion, boy howdy they could not have made a better choice.

  6. Teve says:

    My dad was 69 when he keeled over from a massive heart attack. Thomas won’t live forever.

  7. Paine says:

    @de stijl: Stellaris is such a great game. Was up till 2am last night playing.

    1
  8. Jay L Gischer says:

    @de stijl: I love Stellaris, too. Though it’s not what I’m staying up until 2am playing now. That’s Satisfactory.

    2
  9. Jay L Gischer says:

    I like Lithwick’s take the best, too. Though if the Court had decided the other way, it would inspire turnout for D’s even more this fall, so there’s strategy there, too.

    My nightmare scenario is that somehow the R’s maintain a slim grip on the Senate, and decide that they don’t ever have to confirm justices appointed by a D president. Not just “in an election year”, but never.

    1
  10. inhumans99 says:

    @Jay L Gischer:

    If that happens I could see Biden pulling a Trump, ignoring norms and just installing his pick on the bench. Then he would sit back and let the Senate, states, Judicial Watch, and whatever other conservative groups are out there just yell loudly about suing the White House to deinstall Biden’s pick to be on the Supreme Court. While that works its way through the courts he would still have his pick on the courts.

    What’s that you say, the lawsuits would ultimately make there way to the Supreme Court, okay…Biden’s pick recuses themselves and he/she gets to see if the remaining members of the Supremes are cool with having a full suite of judges serving from the bench or if they agree with McConnell and decide they can live with 1 less Justice on the bench.

    I am not really being flip, if Biden becomes our next President and one of the Justices retires or unfortunately passes away or has to step down for health related reason during his first year in office he gets his pick installed…it is as simple as that and McConnell falls in line or gets left in the dust as Biden goes full on dictator and just decides to do whatever the heck he wants ignoring any checks and balances placed on him.

    This is why Republicans should place some checks on Trump, because what happens when a Democrat with brains instead of trains in his head decides to act like President Trump? Yeah, scary thought…the GOP really should stop being cowards and treat President Trump like the lame duck President he is looking like as the days quickly pass by.

    4
  11. de stijl says:

    @Jay L Gischer:

    What is Satisfactory?

    It contains factory so I assume it is in the same league as Factorio.

    I could just google Satisfactory but that is sorta lame. I prefer the fan to fan interaction.

  12. de stijl says:

    @Jay L Gischer:
    @Paine:

    There is a dude I know who did Let’s Play runthroughs of Stellaris from v 1.0 through 2.1.5.

    ManyATrueNerd. He is a good person. He creates a narrative.

  13. de stijl says:

    @de stijl:

    I am mid-game now and an strongly considering that taking out the fallen ascendencies now is more practical than waiting for them to awake.

    I have strong fleets. Point defense. A mix of plasma and tachyon lance and disruptors on my bigbois.

    I think I am ready to take on a 40 to 60k fleet.

    1
  14. James Joyner says:

    @Jen:

    After 50 years, one would think it’d be settled law.

    Plessy v. Ferguson lasted 62 years, so there is precedent for reversing milestone decisions generations later. But, here, the public has shifted to more favorability to the decision, not in the direction of it being abhorrent.

    1
  15. Mike in Arlington says:

    My vote is for a young, liberal, marathon runner with living grandparents in their mid to late 90s.

    3
  16. James Joyner says:

    @de stijl: Can we take these tangents to the open fora?

    3
  17. rodney stanton says:

    Roberts was a liberal 20 years ago. Bush picked him 15 years ago because he was a leftist~! Roberts has always been a liberal, as his 4 votes on RomneyCare show clearly. He never was, and never will be conservative.

  18. MarkedMan says:

    I think there are a couple of other considerations that might have played on Roberts mind.

    The first is that the way Louisiana went about it was basically stand on a chair and scream at the top of their lungs, “F you all! The Supreme Court is just as political as anything else in government and now we have more of our politicians on the court than you do so we’re going to revote on the exact same thing and the Trump Justices will give Republicans victory! Boo Yah!!!!” In other words, if Roberts had sided with Louisiana then to a large extent he would have been conceding he and the other Justices are little more than political appointees chosen for loyalty. I suspect that was too humiliating for him.

    Second, I suspect he just doesn’t have an ideological or ethical dog in this fight. Justices like Thomas and Kavanaugh are totally political and will just stick a finger in the eye of their “enemies” no matter the outcome. Alito , like Scalia, may be a Catholic of the Opus Dei variety, i.e. seeing it as a duty to impose morality on the country. But Roberts doesn’t strike me as ideological, just partisan. And it is not clear at all that it is in the GOP’s interest to actually overturn RvW. After all they get 100% of the vote of those rabidly opposed and will continue to do so. And right now most women outside of Trump states just assume it will always be there. If they finally overturn it they won’t gain any votes and they will immediately ratchet up enthusiasm among the opposition by 1000%. I’ve long gotten the impression that the Republican Strategists want to keep things as they are.

    4
  19. de stijl says:

    @James Joyner:

    Sure. Not a problem.

    1
  20. gVOR08 says:

    @Modulo Myself: I don’t think you’re disagreeing with Lithwick. She’s interpreting Roberts as signaling that he’s not going to throw out the reputation of the Court over such an obviously weak case. That if they want to restrict abortion they have to do better. You’re adding that Roberts thinks that if it turns out they can’t, so be it.

    Roberts reputation is as pro-establishment, not “populist’. He may realize, as @MarkedMan: notes, that abortion is way more valuable to corporate GOPs as an issue than as a victory.

  21. grumpy realist says:

    Susan Collins trying to rescue herself. So she’s accusing Kavenaugh of going back on his promises…or protesting that it isn’t her fault that she was so gullible?

    In either case, boy you sure know how to pick ’em, lady!

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  22. Michael Cain says:

    @grumpy realist:

    So she’s accusing Kavenaugh of going back on his promises…

    So, Sen. Collins, can we put you down for “convict” when the impeachment comes through?

  23. Sleeping Dog says:

    @grumpy realist:

    At the risk of being sexist. She claims not to know he was a cad when everyone around her did.

    She deserves to lose.

    1
  24. An Interested Party says:

    She deserves to lose.

    That’s only one of several reasons why she deserves to lose…at least Olympia Snowe got out while the getting was good, but not this hack…

  25. KM says:

    @inhumans99 :

    If that happens I could see Biden pulling a Trump, ignoring norms and just installing his pick on the bench.

    I would go so far as to say it would be his Constitutional duty to do so. Congress has no legal right to hamstring two co-equal branch of government – Executive by denying them the right to appoint a candidate and Judicial by stripping it of functional parts. If the Senate chooses to break norms and be partisan in an effort to actively harm 2/3 of the federal government, then it seems POTUS is obligated to respond in kind to break the norm preventing action. After all, Trump believes in “Acting” Everybody to get around confirmation rules so the Senate can’t say boo. If they do, oh well – precedents matter. They can try to impeach said Justice to remove them but hey, another norm broke and now we can get rid of Boof for all his perjury at his confirmation!

    “Rules for thee, not for me” needs to stop or the country is doomed. Dems need to man up and start pulling some of the same crap Repubs pull. The GOP is not going to stop since Dems refuse to do anything meaningful about the ratf^ckery and the new norm/precedent is just as valid since they tentatively accepted it at the time with their inaction. Like it or not, these are the new rules so let’s play. GOP Senate wants to deny a Dem POTUS a SC pick again? Oh hell no, Trump rules are in effect – we do what we want, come stop us if you can!

  26. JohnMcC says:

    Well, that’s a lot of commenting and managed to avoid the simple straightforward remark — ‘because Chief Justice Roberts can read polls and believes Democrats really mean it when they ask why not pack the f@*king court?’

    1