Of all the cop-outs in Supreme Court jurisprudence, Chief Justice John Roberts’s concurrence in June Medical Services v. Russo has to be one of the worst.
The case was brought by abortion providers in Louisiana who bristled at having health and safety rules imposed upon them that made it harder to do business. They arguably lacked standing to represent the class supposedly aggrieved in this case — the very patients those rules were designed to protect from quack abortionists.
Yet, they succeeded both in establishing their standing and in upholding the controversial standard that such requirements cannot stand, being overly burdensome to women who might seek abortions — that is, parties not even represented before the court. And they did it in a 5-4 decision in which Roberts was the tiebreaker.
As disappointing as the outcome of this case is, the reasoning that led Roberts to write the decisive concurrence is even more infuriating for its utter lack of substance and spine.
Right off the bat, Roberts points out that in a recent case involving a “nearly identical” Texas law in 2016 — Whole Women’s Health — he joined the dissenting opinion in favor of upholding that law.
But then Roberts embraces the nihilism of blindly upholding a wrong decision just because…well, it was decided. It is because it is because it is.
Pontius Pilate at least managed to keep his comments brief: “What is Truth?” Roberts, in contrast, takes multiple dull paragraphs to make the same nonargument.
“The question today,” he writes, “is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case … The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
It would be reassuring to discover some other reasoning that underpins this decision. Instead, Roberts looks back just four years to a decision he believed, at the time, was wrongly decided, then further back to the abortion precedent that he believed wrongly upheld it — Planned Parenthood v. Casey. He then shrugs his shoulders and says, “Well, sorry folks, but I’ve got to stick with the same wrong decision the court made before.”
This is completely absurd. The Supreme Court has changed quite a bit in its composition since 2016. And even setting that aside, it frequently revisits and changes old precedents. Some of the highest-profile cases in its history — old and new, good and bad — involve the overturning of precedents that had previously endured for years or even generations. Whether it’s Brown v. Board of Education, Gregg v. Georgia, Janus, Lawrence v. Texas, or any number of other decisions, major precedents are, at times, upended because the justices have deemed them incorrectly decided.
Roberts noted in his decision that the doctrine of “stare decisis” — literally Latin for “to stand by things decided” — is intended to give litigants and others certainty about how the law is interpreted. Without it, one could imagine a legal environment in which judges become so arbitrary that it is impossible to comply with the law.
But equally dangerous is a legal environment in which flat-out bad decisions are simply allowed to stand, no matter what, just because they were decided the wrong way first. Roberts, sadly, has left his nation in a state of blind obedience to just such a bad ruling.
This isn’t just another bad ruling, but clear proof that Roberts is nothing but an empty robe. It is a bitter disappointment and certainly not what his supporters hoped for when he was confirmed.
