The Supreme Court struck down Louisiana’s law that required physicians who perform abortions to have hospital admitting privileges. The ruling, in June Medical Services v. Russo, fits seamlessly with the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, which considered a nearly identical Texas law. The story here is not the ruling, or the dissents, but the politics of the Supreme Court via Chief Justice John Roberts.

Justice Breyer penned the Court’s ruling and was joined by Justices Ginsburg, Kagan, and Sotomayor. These four reliable supporters of abortion rights determined the Louisiana law (Act 620) provided no meaningful health benefits for women and that, if implemented, it would restrict access to abortion by limiting the number of physicians and clinics available to women seeking an abortion.* This would result in a “substantial obstacle” in the path of the abortion decision, which creates an “undue burden” on the woman’s right to choose abortion before viability. The argument echoes abortion jurisprudence since Planned Parenthood v. Casey, the Court’s most critical abortion decision since Roe v. Wade.

The dissents, filed by Thomas, Alito, Gorsuch, and Kavanaugh, disagree on a variety of fronts and they also strike familiar themes. Justice Thomas digs at the root of abortion decisions by challenging their foundation, Griswold v. Connecticut, as well as Roe and Casey. Justice Alito spends a great deal of time attempting to refute the contention that Louisiana’s law provides no health benefit and that it would severely limit abortion access. Justice Gorsuch mocks the plurality’s unwillingness to defer to the Louisiana legislature’s finding of fact–instead asserting its own uninformed interpretation–while Justice Kavanaugh’s brief opinion urges the case to be remanded for further consideration of Act 620’s possible impact.

There is much to glean from the arguments put forward by eight members of the Court in June, but they mostly set the stage for the hinge vote cast by Chief Justice Roberts. Roberts dissented in Whole Woman’s Health, the case he claims is virtually identical to June. So just four years ago, he voted to uphold such admissions requirements for abortion providers, but here he finds them an unacceptable erosion of the right to choose. Most oddly, he reaffirms his opposition to Whole Woman’s Health and believes it was wrongly decided, but he votes to uphold it nonetheless and concurs with the plurality decision.

Roberts pins his argument on stare decisis, or the doctrine of precedent. In quoting Edmund Burke’s Reflections on the Revolution in France, Roberts explains his deference to even the recent past. Stare decisis

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 ages.’”

The Court should adhere to precedent except for very particular reasons and those reasons are not pertinent here, argues Roberts.** By applying relevant precedent, especially in Casey and Whole Woman’s Health, Roberts believes the plurality’s decision is inevitable, so he votes to strike down Act 620.

Roberts’ vote is disappointing for pro-life advocates, who expected the Court, freshly resupplied with President Trump’s appointments, to begin to whittle away at Roe. Roberts, however, is likely voting based on factors outside the law. Chief Justice Roberts has written stinging opinions that embrace staunchly traditional, originalist themes, but those are rarely found when his vote is decisive with a contentious issue.

This ruling reminds me most of N.F.I.B. v. Sebelius (2012), which upheld the core of the Affordable Care Act by reimagining the individual mandate as a tax instead of a regulation of interstate commerce. Roberts, when pushed into constitutional no-man’s land, where his vote will spark a conflict, runs toward the trenches of deference, either to precedent or the legislature depending on his need. In Sebelius, he bent over backwards to defer to the legislature by providing a rationale it forgot to reference. Here, he finds comfort in the sacred text of precedent, even when it is only four years old, and ignores the legislature’s findings.

Both cases are bound, though, by Roberts’ choice to extract the Court from a conflict he thought perhaps it could not win. Could the Court withstand a full-throated fusillade from Barack Obama in defense of his signature legislative achievement? Could the Court survive the cultural tumult surrounding the erosion of abortion rights? During a pandemic? In a time of massive polarization? There is probably some political wisdom in Roberts’ calculation.

Roberts is trying, I believe, to maintain the Supreme Court’s credibility and objectivity. He is working hard to keep the Nine out of struggles they cannot win. Roberts may be haunted by the impact of Brown v. Board of Education, where the Court’s decision was met with massive resistance and, to put it kindly, spotty executive enforcement. More than any case in recent history, Brown revealed the Court’s essential powerlessness in the face of naked politics.

Of course, the danger is that by straying away from fundamental conflicts, Roberts divests the Court of its proper role. At best, the Supreme Court should interpret the Constitution in light of the Madisonian Dilemma. The persistent struggle between the tyranny of the majority, where minorities are vulnerable to unmoored government power, and the proper authority of the majority, which is demanded in a republic, must be navigated instead of being avoided. Roberts’ approach would be cold comfort for the plaintiffs in Brown. Would Roberts have demurred from overturning Plessy because of the possible tumult? Why shackle the majority, as he does in June, simply in the name of precedent if he is convinced Woman’s Health was wrongly decided? More than anything, Roberts fails to grasp the cultural costs accrued to a Court that bends toward political and cultural power to avoid offense.

This is all starting to feel eerily similar to Justice Anthony Kennedy’s tenure on the Court. As he became the swing vote, settling everything from same-sex marriage to religious liberty claims, Kennedy wielded cultural power more fit for a monarch than a judge. We, the people, deserve to be governed by the law. Chief Justice Roberts must provide convincing legal reasons for his decisions, instead of irregular and unprincipled deference as it suits his political calculations.*** If he fails to do that, he is empowering an ill-considered majority of one.

*In reaching his conclusion, Justice Breyer endorsed the district court’s interpretation of the facts, as opposed to the Circuit Court, which reversed the district’s ruling based primarily based on a disagreement with the district’s interpretation of the record. Justice Alito’s dissent takes careful aim at this disagreement. He argues that the plurality misunderstands the evidence, and that Chief Justice Roberts’ concurrence wrongly assumes far too much factual continuity between Whole Woman’s Health and June.

**Roberts notes the Court should look at the “administratibility” of the previous ruling, be sure the precedent fits with subsequent factual and legal developments, and consider the interests that have developed around the precedent and how a revisitation of the precedent would endanger those interests. This third category suggests Roberts may never vote to overturn Roe or its progeny since Roe has created an obvious set of interests.

***Precedent, of course, plays a pivotal role in a nation governed by the rule of law. But in a constitutional republic, precedent should be measured against the Constitution first, particularly since the Constitution is the embodiment of the people’s sovereignty. Precedent out of line with the Constitution is an abuse of judicial power that is difficult to curtail.