Seeing Chief Justice John Roberts side with the liberal justices on yet another high-profile Supreme Court decision brings to mind on old debate line employed by Ronald Reagan against Jimmy Carter: There you go again.
Let’s go down the recent list of Roberts’ defections from constitutional fidelity, starting with his Monday decision striking down a Louisiana law requiring doctors performing abortions to having admitting privileges at a hospital within 30 miles of the clinic.
Roberts sided with Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan finding such a requirement unconstitutional.
Mind you, four years ago Roberts dissented from a ruling striking down a Texas law with a similar requirement, but that requirement was more restrictive than Louisiana’s.
In that instance, now-retired Justice Anthony Kennedy joined with the liberal wing of the court in the 2016 Texas case Whole Woman’s Health v. Hellerstedt.
Riddle me this: How is a more restrictive Texas law constitutional in Roberts’ mind in 2016 but a less restrictive Louisiana law unconstitutional in 2020?
Roberts has fully ensconced himself in the role of swing vote first filled in recent times by former Justice Sandra Day O’Connor, then by Kennedy and now by the chief justice.
Remember that talk about the court shifting to the right with President Donald Trump’s appointment of Brett Kavanaugh to replace Kennedy?
Roberts has assured us that has not happened.
In his concurring opinion on Monday in June Medical Serivces LLC v. Russo, the chief justice wrote he felt bound to follow court precedent and claimed the Louisiana law was just as restrictive as the Texas law. But that still does not explain the flip-flop.
“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” the chief justice wrote. “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.”
Justice Clarence Thomas took him to task for the switch, noting stare decisis generally refers to settled law with a long record of decisions stemming from it.
“[N]o one could seriously claim … Whole Woman’s Health, decided just four Terms ago — [is] part of the ‘inheritance from our forefathers,’ fidelity to which demonstrates ‘reverence to antiquity,’” Thomas wrote, quoting philosopher Edmund Burke.
Of course, Roberts has been more than willing to side with the liberal justices when his vote really matters.
We all remember him throwing down the deciding lot upholding the constitutionality of Obamacare.
But the trend has become pronounced since Trump took office.
Last summer, Roberts, in his majority opinion, ruled against the president’s administration including a citizenship question on the census. He claimed Trump’s commerce secretary did not explain well enough why such a question was relevant.
What kind of silliness is that? Our country ought to know how many citizens it has so they can be properly represented in Congress.
The citizenship question, in some form, has appeared in nearly every census conducted during the history of the nation.
Earlier this month, Roberts joined the liberal justices in rejecting a suit brought by California churches in which they argued Gov. Gavin Newsom’s restrictions on religious gatherings were too restrictive.
The governor had limited church gatherings to 25 percent capacity while secular businesses were not subject to such a restriction.
These included “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries,” Kavanaugh wrote in his dissent.
“California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment,” Kavanaugh concluded.
Perhaps the whopper of them all from this term was Roberts’ ruling blocking Trump from winding down the Deferred Action for Childhood Arrivals program.
Former President Barack Obama acknowledged on numerous occasions he had no authority to change immigration law without Congress, but he did it anyway during the summer of 2012 at the height of his re-election campaign.
In his majority opinion, Roberts made the implausible claim the justices were not seeking a specific policy outcome.
“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern,’” the chief justice wrote.
“We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action,” Roberts continued. “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.
“That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
Since when is it the judicial branch’s role to gauge if the executive branch exercised its “discretion in a reasonable manner” in terms of ending an illegal program?
Republican Sen. Tom Cotton of Arkansas responded to Roberts’ decision, observing, “It cannot be the law that what Barack Obama has unlawfully done, no president may undo. Yet John Roberts again postures as a Solomon who will save our institutions from political controversy and accountability.”
“If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court.”
What has become perfectly clear is Trump needs another term if for no other reason than to try to truly establish a conservative, law-abiding majority on the court.
Then Chief Justice Roberts can join with the liberals all he wants while the American people enjoy a high court that keeps fidelity with the Constitution regardless of political expediency.
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