Back in March, I wrote that Chief Justice John Roberts appeared to be on course for a collision with himself over abortion. Yesterday, he collided in a spectacular way. Due to my testimony in Congress on the Lafayette Park case, I was unable to share the opinion.
In the earlier column, Chief John Roberts Is Heading Down Collision Course With Himself, I wrote:
“Roberts will have to vote on a Supreme Court that can clearly deliver a victory for states’ rights and pro-life advocates. There are technical “off ramps” with both cases, but he will have to work hard to evade this clear vote. Clarity is something that Roberts likely does not relish in either area. On both ObamaCare and abortion, he would have to reject his own prior analysis to vote against the position of his conservative colleagues. So conservatives may not like the new destination of the chief justice if he decides to jump the track on both of his prior opinions.”
He hit himself on Monday in voting to strike down virtually the identical law that he declared constitutional in 2016 in a Texas case. He cited the importance of stare decisis and respecting precedent but there has been a long debate over the importance of that doctrine when it comes to constitutional interpretation. Some of us have long maintained that constitutional interpretation should be given added weight over institutional norms in such conflicts.
Roberts insisted that his earlier constitutional judgment would be set aside to follow precedent: “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.”
Roberts is the ultimate institutionalist who resists sweeping changes from the Court, particularly with great social impacts. His vote to save Obamacare from being struck down in its entirety is an example of that pattern. His vote effectively gutted the very federalism principles that he embraced in the opinion. Moreover, his vote in 2016 would have arguably changed precedent but he was one of a minority of members. Now that he held the majority vote, he adopted the inverse position.
In fairness to Roberts, it is rare to have two similar statutes comes before the Court in such a relatively short time. Roberts may have recoiled at the image of the Court careening from one side to the other based on the addition of a single member.
I have discussed how stare decisis is more often cited in dissent or in a completely hypocritical way by politicians. Everyone insists on following precedent that they agree with while demanding the reversal of other cases. When it comes to constitutional interpretations, I believe a justice is bound by the Constitution to rule consistently with what he or she believes the Constitution mandates. Otherwise, justices seem to have a fluid concept of when precedent is worth preserving and when it can be ignored.
Whether it was sticker shock or stare decisis, time will tell.
Here is the opinion: June Medical Services v. Russo