Chief Justice Roberts finds another way for conservatives to lose [UPDATED]

As expected, the Supreme Court today ruled in favor of abortion providers in June Medical Services v. Russo. It struck down a Louisiana law that required abortionists to maintain admitting privileges at a local hospital in order to perform abortions.

The vote was 5-4. Chief Justice Roberts joined the liberal majority. Justice Breyer wrote the majority opinion.

Four years ago, Roberts reached the opposite result in a Texas case in which the Court struck down a similar admitting-privileges law. Roberts was in the minority in that case.

In today’s case, Roberts wrote a concurring opinion explaining his flip. He relied on the doctrine of stare decisis which, he said, bound him to the result in the Texas case.

Stare decisis is an important doctrine. But should it bind a Justice to a ruling he thought was clearly wrong just four years ago? I don’t think so.

If many conservatives are getting thr sinking feeling that the Court, and Roberts in particular, are playing a shell game with us, I don’t blame them. I’m getting that feeling too.

Roberts began his defense of his application of stare decisis to this case by quoting Edmund Burke:

This principle is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the “private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France 110 (1790).

Yuval Levin, a scholar of Burke, was not impressed. He finds that Justice Thomas has the better of the argument in his dissent. Thomas wrote:

THE CHIEF JUSTICE advocates for a Burkean approach to the law that favors adherence to “‘the general bank and capital of nations and of ages.’” Ante, at 3 (quoting 3 E. Burke, Reflections on the Revolution in France 110 (1790)). But such adherence to precedent was conspicuously absent when the Court broke new ground with its decisions in Griswold and Roe. And no one could seriously claim that these revolutionary decisions—or Whole Woman’s Health, decided just four Terms ago—are part of the “inheritance from our forefathers,” fidelity to which demonstrates “reverence to antiquity.” E. Burke, Reflections on the Revolution in France 27–28 (J. Pocock ed. 1987).

(Emphasis added)

Levin finds another major problem with Roberts’ resort to Burke:

In the passage Roberts cites (as well as the one that Justice Thomas cites), Burke is talking about judgments made by statesmen, not by judges. And it’s not as though he never expressed any views about how judges should think about precedent. That’s actually a subject Burke took up explicitly. . .especially during the years of the trial of Warren Hastings.

Burke described precedents as “one ground, though only one ground, of legal argument,” and said that before they could be treated as authoritative they needed to be tested against five crucial criteria:

They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.

The Chief Justice did not refer to any such criteria in thinking through his defense of a decision he disagreed with just four years ago. And if he had, it isn’t likely that his concurrence today would have withstood scrutiny under them.


The good news is that Justices Gorsuch and Kavanaugh voted with the conservative minority. But that provides very little consolation.

UPDATE: Ilya Shapiro notes that the Chief Justice was willing to overturn Supreme Court precedent in Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Knick v. Township of Scott (2019), where the precedent was much older and more entrenched than in today’s Louisiana case, and where he had not dissented from the outcome.

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