Andrew Harnik/AP Photo
Demonstrators rally outside the Supreme Court, March 4, 2020, as the Court takes up the first major abortion case of the Trump era.
The unavoidable headline news about the Supreme Court’s ruling in the abortion-restriction case June Medical Services v. Russo, published on the last calendared day of Supreme Court business for this term, is the concurrence of Chief Justice John Roberts with the “liberal bloc” of Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Roberts’s move, striking down Louisiana’s attempt to severely curtail abortions, was a shock to many Court-watchers, and not just because he is a renowned conservative appointed by President George W. Bush. Roberts actually voted the other way on the opinion in Whole Woman’s Health v. Hellerstedt (2016), which found a state law virtually identical to the one under consideration in June Medical to be unconstitutional.
I admit to having been surprised, too. Even after the major Supreme Court decisions in recent days about LGBT workplace rights and the Deferred Action for Childhood Arrivals (DACA) program, I was bracing myself for an opinion that would prove there was an exception to the moderating trend where the rights of women and pregnant persons were involved.
But I wasn’t totally shocked by Roberts’s choice to rule against the Louisiana law and with his female and more liberal colleagues: I was in Washington, D.C., for oral argument in this case in early March, just before COVID-19 shut everything down. I noticed the relative “bloodlessness” of the feminist appeal in the case, its emphasis on high-court precedent and the storied traditions of Anglo-American law. That was all for Justice Roberts’s benefit. If those who favored legal, moderately accessible abortion could not persuade the chief justice on the merits (as it seemed from his record they could not), then they would have to underline the unruliness of the process by which the June Medical case made its way to the Court.
The fact that the case was a rerun of a very recent one, and no new information had come to light about the legal issues it posed, was just the most egregious issue.
There was plenty to underline. The fact that the case was a rerun of a very recent one, and no new information had come to light about the legal issues it posed, was just the most egregious issue. Second, there was also the fact that the federal appeals court (the Court of Appeals for the Fifth Circuit) that found in favor of Louisiana, and whose ruling Roberts and the others overturned, had itself overturned the decision of a federal trial court. The Fifth Circuit judges did this because, as Justice Breyer’s opinion with his three female colleagues puts it, the appeals court “did not agree with the factual findings” of the court below it. Two out of three judges on a panel of the Fifth Circuit then went out and found their own facts and ruled on the basis of those. This is a big no-no, or at least an unusual occurrence: What’s normal is for the trial courts to establish the factual record by having trials at which witnesses present evidence and get questioned by attorneys. Appeals courts accept the record as established at trial, read briefs, and make determinations based on legal principles.
I don’t think it’s overreading to suggest that part of the feminist case, and argument of the “liberal bloc,” was that we can’t let elite law be Trumpified or Kellyanne Conwayed to the point of having judges generate alternative facts when they don’t like the ones with which they are presented. Nor is it an overstatement to suggest that this is exactly what happened when the Fifth Circuit ruled as it did.
The third strike against this case was the addition of a major issue in the thirteenth hour, as it was making its way to the Supreme Court. Louisiana and its conservative legal allies had accepted doctors as appropriate plaintiffs in the case at multiple levels of adjudication. At the very end, however, they reversed themselves and overreached by adding the issue of those doctors’ lack of “standing” to their briefs. Their ambitious attempt, which would have been devastating if they were successful, was to set a precedent that doctors and clinics would never again be able to advocate for their patients in reproductive-rights litigation.
We can’t let elite law be Trumpified or Kellyanne Conwayed to the point of having judges generate alternative facts when they don’t like the ones with which they are presented.
Poor Justice Roberts! You can almost see him squirming from between the lines of his solo concurring opinion. Reversing yourself can’t be fun, especially when the vote you’re reversing was so recent. He insists that his take on Whole Woman’s Health, when he was in the anti-choice minority, was right, that the majority decided the case incorrectly. However, “[t]he 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 chief justice also raps the knuckles of the judges of the Fifth Circuit who generated their own facts in this case. The trial court’s findings of fact, he insists, “bind us”—or they should, even when we don’t care for the conclusions to which they lead. He can then present his vote as being about something other than abortion, or the needs of pregnant people, or doctors who want to serve their patients, or a world gone slightly mad. It’s about stare decisis as defined in Black’s Law Dictionary and the rule of law as outlined in Blackstone’s Commentaries on the Laws of England (1765).
Although he expresses his position in the particular terms of Anglo-American law, Roberts’s dilemma is that of the anti-Trump Republican, the conservative who sees with horror the logical conclusions of his politics and insists that they are instead a perversion of those politics. Unbalanced by the intellectual jujitsu necessary to oppose an extreme abortion regulation after he supported it, the chief justice leans not only on Black’s and Blackstone. He deploys those undergraduate conservative mainstays, Edmund Burke’s Reflections on the Revolution in France (1790) and Federalist Number 78, by Alexander Hamilton. He quotes the late Justice Scalia twice and writes about both “fidelity” to precedent and judicial “humility.”
Well, who cares if the arguments don’t quite scan? As another undergraduate favorite once wrote, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen,” among others. As an exhausted feminist, I am happy to take the win.
Welcome to the fight, Chief Justice Roberts.
