Vander Hart: Roberts Places Institutional Loyalty Before Sound Judgment

Chief Justice John Roberts sided with the Supreme Court’s liberal wing to strike down Louisiana’s law requiring abortion clinics to have admitting privileges at a hospital. 

Justice Stephen Breyer wrote the majority opinion in June Medical Services v. Russo with Justices Ruth Bader Ginsberg, Elena Kagan, and Sonia Sotomayor joining, while Roberts concurred writing a separate opinion.

Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas dissented. 

The Supreme Court ruled 5 to 3 in Whole Women’s Health v. Hellerstedt against an identical law in Texas in 2016. Roberts joined the dissent in that case. 

In his opinion released on Monday, he wrote, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”

Say what? Of course, he should be weighing the merits of the case. Whether a case is right or wrong is the ONLY question he should consider. 

“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,” he added.

Stare decisis is Latin for “stand by things decided.” It’s a legal doctrine that states that court precedents should be considered when deciding a case unless they contravene ordinary principles of justice. 

Stare decisis is important to provide some consistency within the court system as lower courts apply Supreme Court precedent. It does not mean that the Supreme Court can’t reverse itself and correct bad decisions. They have to have the ability to do that, but unfortunately, it does not happen nearly enough, and lousy precedent continues to inform future legal decisions.

So, in a nutshell: Roberts disagreed with the majority in Whole Women’s Health, continues to disagree, but because of a convoluted view of stare decisis, he’s ignoring his legal judgment of Louisiana’s law to rule against it.

Using this logic, he would have dissented in Brown v. Board of Education had he been on the Supreme Court in 1954 because of the court precedent in Plessy v. Ferguson. It’s nonsensical.

Whole Women’s Health v. Hellerstedt was wrongly decided. Striking down laws requiring abortion clinics to have admitting priveledges to a hospital within 30 miles is unreasonable, and it does not protect women’s health. 

Roberts had the opportunity to correct that mistake, and he blew it in favor of some unprincipled loyalty to institutionalism.