Roberts Rescues Roe in a Judicial Triple Play

             In one of the final decisions of its current term the U.S. Supreme Court declared unconstitutional a Louisiana statute requiring doctors performing abortions to have admitting privileges at a local hospital.  This statute was essentially the same as one adopted by the State of Texas that the Supreme Court had previously declared unconstitutional.  In that earlier decision, Justice Roberts had voted with the dissenters to uphold the statute.  Since then Justices Gorsuch and Kavanaugh were added to the Court and it was widely expected that the Court’s ruling in the Louisiana case would, at long last, effectively overturn the availability of legal abortions guaranteed in the Court’s 1973 decision in Roe v. Wade.

             This unexpected outcome was the result of Chief Justice Robert’s departing from his previous decision in the Texas case and joining the Courts four liberal Justices in declaring the Louisiana statute an impermissible impediment to obtaining an abortion. As a technical matter, the Chief Justice wrote a separate, but concurring, opinion in which he reaffirmed his belief that both the Texas and Louisiana statutes did not violate the Constitution, but that under the doctrine of stare decisis (Latin for previously decided), he felt bound to follow the Court’s prior decision. Although the doctrine of stare decisis has been long-embedded in American jurisprudence as a means of providing stability and predictability to court decisions, it is nevertheless occasionally ignored by the nation’s highest court, especially when the earlier decision is deemed to be contrary to current public opinion. Since roughly two-thirds of Americans believe that abortion services should remain legal and readily available, the Chief Justice’s action had a sound legal basis.

             To most non-lawyers, the Chief Justice’s opinion makes absolutely no sense. They see abortion as a binary issue; you are either in favor of it or against it. They also have to be thinking that If the Chief Justice hasn’t changed his mind about the Constitutionality of a law requiring abortion doctors to have hospital admitting privileges, why is he now voting to overthrow the statute?  In addition, if stare decisis is such a well-established judicial doctrine, why didn’t the other four conservative Justices join Roberts in his concurring opinion? Was there something else involved in Robert’s decision? Hold that thought.

            The majority of Americans who believe abortion services should remain readily available view the Chief Justice as having rescued Roe v. Wade like Lancelot riding in at the last minute, with sword in hand, to save Guenevere from being burned at the stake.  Experienced court watchers, however, interpret his actions in a slightly different manner. Had the Chief Justice simply wished to vote to strike the Louisiana statute because it was identical to a previously declared unconstitutional statute, he could have done so in a one paragraph opinion.  Instead, he went on to point out his opposition to abortion, raising the likelihood that he will vote with the Court’s four other conservative justices when faced with a question of the Constitutionality of a slightly different, but equally inhibiting, restriction on performing abortions.  In this sense, they view Roberts’ decision more akin to a temporary reprieve granted by a governor postponing the execution of a prisoner on death row. Thus, they perceive that the availability of medically performed abortions may soon be coming to an end.

            Those who follow the Chief Justice’s activities know that he is frequently asked to speak at public events and that he uses those occasions to emphasize that federal judges are non-partisan and decide cases on the basis the language of the Constitutional provision or statute in question, the intent of its authors and established legal precedents and interpretive doctrines. According to Roberts, federal judges, and especially Justices of the U.S. Supreme Court, do not allow their prior political affiliations to affect their decisions. The Chief Justice, however, may be the only person who actually believes this myth. Certainly, the President doesn’t believe it as he attributes every court decision against him as having been rendered by Democratic appointed members of the judiciary. Similarly, Mitch McConnell does not subscribe to this belief as he has spent the past decade blocking judicial appointments by President Obama and setting aside all Senate business to rush through the confirmations of judicial nominees of President Trump which already number 200. 

            Perhaps even more revealing are the Supreme Court’s own decisions which do not support the Chief Justice’s idealistic notion of how the federal judiciary operates. It’s hard to interpret the Court’s decision in Bush v. Gore as anything but politically motivated. Equally partisan were the Court’s decisions holding unconstitutional the campaign financing restrictions in the McCain-Feingold Act and the requirement that restrictions on voting be pre-approved by the Justice Department contained in the Voting Rights Act. The Chief Justice voted with the majority in each of these decisions and wrote the Court’s more recent decision not to consider a case involving political gerrymandering in which a minority of a state’s voters were able to elect nine of the states thirteen Congressional Representatives. During the last few months the Court made two other decisions involving politically-charged issues along partisan lines: one involving delaying consideration of whether the President can block subpoenas seeking his personal financial information and the other involving delaying consideration of the Constitutionality of the Affordable Care Act which was the principal issue in the 2018 election. Thus, notwithstanding the Chief Justice’s protestations, the U.S. Supreme Court has a major credibility problem; and the very fact that the Chief Justice is trying hard to convince the public that it doesn’t is strong evidence that he recognizes that his Court is in serious danger of losing the trust of the American people.

            A similar credibility problem faced the Court in the 1930s as President Roosevelt was trying to bring the nation out of the Great Depression by having Congress enact legislation designed to put Americans back to work. In a series of decisions, the Court declared each of these acts to be unconstitutional. In response, Roosevelt threatened to increase the number of Justices on the Court from nine to fifteen, with him appointing the additional six Justices. That threat seemed to enable the Court to more clearly understand the benefit in Roosevelt programs in what judicial scholars have dubbed “the switch in time that saved nine.” Thus, the Chief Justice’s decision to vote with the Court’s liberal Justices to hold the Louisiana statute unconstitutional was likely motivated in part as an effort to rescue the Court’s highly tarnished reputation as a non-partisan tribunal.

             The availability of abortions performed by a medical professional has long been a bete noire to a substantial majority of the nation’s Evangelicals. In fact, they find the issue so inflammatory that have taken to picketing facilities performing abortions and, in a few instances, to even physically assaulting abortion providers. For the most part, however, the right-to-lifers have have fought their battle against abortions through the ballot box, seeking to elect state and federal legislators willing to pass anti-abortion legislation and governors and Presidents willing to appoint judges who would uphold those statutes. Politically, they constitute a sizable voting block and tend to vote with greater dependability than the average American.

             In recent elections, white Evangelicals have supported Republicans over Democrats by approximately 25 percentage points.  Although Evangelicals tend to be conservative, their interests are not wholly aligned with the core values of the Republican Party which include cutting taxes on businesses and wealthy individuals, reducing regulations that inhibit business activities and protect individuals, and cutting safety-net programs for those who are struggling.  Thus, the abortion issue has become the glue that binds them to the Republican Party and the focal point of their motivation to support Republican candidates. While white Evangelicals have served as the cornerstone of the Republican Party’s base for the past fifty years, they have taken on an even greater importance since 1990 as the percentage of non-white voters has increased from 15% to 27%.  Thus, it is not difficult to understand why the Republican Party’s leaders consider the continued support of white Evangelicals to be critical to their political survival.

            With that being the case, why did the Chief Justice deny Evangelicals the prize they have been pursuing for the past 47 years. The answer is simple. If the Chief Justice had put the final nail in the coffin of Roe v. Wade, the principal reason for Evangelical support of the Republican Party would be removed. In that sense, the Chief Justice’s concurring opinion not only rescued Roe v. Wade and helped rescue the reputation of the Supreme Court, it also helped secure the continued viability of the Republican Party; and that may have been the principal motivating factor underlying his concurring opinion.

            In the history of major league baseball there have been fifteen unassisted triple plays. Chief Justice Roberts may have just accomplished the first triple play in judicial history.