Roberts Misrules

National Review Online

Monday, June 29, 2020

 

The Constitution does not prohibit Louisiana from requiring abortionists to have admitting privileges in hospitals near where they operate. We know this fact from reading it; from the debates over the ratification of its provisions, none of which suggest that anyone believed that it could be used in such a fashion; and from the fact that for many decades states prohibited abortion altogether without anyone’s even alleging that they were violating the Constitution. Now five justices of the Supreme Court have conceded this obvious point.

 

The Court will not allow Louisiana this regulation anyway. Chief Justice John Roberts is one of the five justices who do not believe the law conflicts with the Constitution, rightly interpreted. He voted in 2016 that an identical Texas law should be upheld, and his opinion in the Louisiana case says that he still agrees with his reasoning then. Nevertheless, he claims to believe that the Louisiana law is too similar to the law that his colleagues in 2016 struck down over his dissent. The force of precedent, he maintains, requires the law to be nullified. Otherwise, Americans would lack confidence in the rule of law. It is, on the other hand, wonderfully inspiring to that confidence for a justice to strike down a law that he concedes the state had the constitutional authority to enact.

 

It is impossible to credit Roberts’s claim that respect for precedent dictated his decision. He has been perfectly willing to overrule precedents in the past. Some of them were of much longer standing. Janus v. AFSCME (2018), on public-sector unions, overruled Abood v. Detroit (1977). Some of them involved cases that presented nearly identical fact patterns. Gonzales v. Carhart (2007) upheld a ban on partial-birth abortion of a type that had been struck down in Stenberg v. Carhart (2000).

 

The Court’s abortion precedents bear the marks of repeated torture. In Roe v. Wade (1973), the Court purported to find a right to abortion in the Constitution. Casey v. Planned Parenthood (1992) put new limits on that right while saying it had to stay in the name of precedent: Abortion regulations would be upheld unless they placed an “undue burden” on the right. Whole Woman’s Health v. Hellerstedt, the 2016 decision, purported to apply Casey while changing it: Now abortion regulations had to pass a cost-benefit test imposed by the justices. In the latest decision, Chief Justice Roberts pretends that Whole Woman’s Health had not changed Casey at all. Never mind that in 2016, he joined an opinion that explained how it had changed it. Behold the majesty of the law.

 

The pro-life movement has persisted all these decades, no matter how long the odds, no matter how beleaguered the cause, no matter how insistently it was told that the question of the human rights of unborn children had been settled. It is secure in the conviction that all human beings have a right not to be killed, whatever their age or size or location or condition of dependence. It knows that what the Supreme Court has kept saying about our nation’s fundamental law is a slander. This latest sad and unconvincing decision should not cause pro-lifers to slacken for a moment.

 

One can only speculate why Chief Justice Roberts has engaged in his contortions. Perhaps he believes that this decision will somehow strengthen the legitimacy of the Supreme Court as an institution above political strife. Instead, he has reinforced the impression, on all sides of our national debates, that he is the most politically calculating of the justices. He has diminished the belief in the impartiality of judges among those Americans who have been most reluctant to give it up. What he has accomplished for his institution is further disgrace.