A second intellectual inconsistency mars Chief Justice John Roberts’s decision in the Louisiana abortion case released on Monday.
Earlier, I explained how Roberts has a bizarre and intellectually untenable habit of honoring the legal principle known as “stare decisis” sometimes but ignoring it at other times. Concomitantly, let’s see how Roberts picks and chooses when and when not to show “deference” to elected legislative bodies. Hint: Roberts defers more to liberal legislative actions than to conservative ones.
In Roberts’s most infamous decision, the one in NFIB v. Sebelius that upheld most of Obamacare, the chief justice went out of his way to “save” the presumed intent of a bare majority in Congress even where Obamacare’s sponsors themselves said the law did not mean what Roberts suddenly said it meant. Specifically, Obamacare’s sponsors specifically denied that the law’s “individual mandate” was a tax. Yet when Roberts decided that calling it a tax was the only way to keep the law in place, he “deferred” to Congress’s presumed, secret intent, so as to save Congress’s handiwork.
As he rather plaintively asserted in NFIB, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”
Yet when it comes to Louisiana’s legislature doing what in an earlier case Roberts himself had opined was a legitimate act of state power — namely protecting women’s safety by requiring that abortionists must secure “admitting rights” to hospitals if needed — Roberts suddenly is no longer deferential to legislative intent.
Unlike Congress, which did not even attempt to justify Obamacare’s individual mandate as a tax because it claimed it wasn’t a tax at all, the Louisiana legislature specifically established a record of “fact-finding” in support of its health requirement. Also, as Justice Neil Gorsuch noted in dissent, it was a requirement that applied to most other surgeries in the state, so it wasn’t any more of a burden on abortions than on, say, colonoscopies.
Thus, a state law that wasn’t obviously unconstitutional on its face, and which the elected legislature had taken great pains to justify with a factual record, and on which an appeals court had ruled that the state’s factual record was indeed compelling, nonetheless gets jettisoned by Roberts.
This is the same Roberts who went out of his way to do for a legislature what it wouldn’t do for itself, by calling Obamacare’s mandate a tax in order to presume an intent Congress itself never declared.
In sum, Roberts treated the Louisiana legislature’s carefully expressed intent with far less deference than he treated what he merely imagined to be Congress’s implied or secret intent.
In the Louisiana abortion case, then, what happened to Roberts’s assertion that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality?”
It seems that when Roberts wants to position the court in a different political way, he is willing to crush, mutilate, and expel from his jurisprudence all such notions of saving a law by adopting a generous interpretation of legislative intent.
