Independence is in the eye of the beholder, clearly. Did John Roberts demonstrate independence in June Medical, as the Washington Post claims? Or did he go out of his way to cleave to the cultural and political pressure surrounding abortion rather than stick to the law — and his own convictions, as Andy McCarthy alleges?
We know only one thing for sure — the media measures “independence” by its own agenda, and even then doesn’t actually get it right:
Every Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows.
In a remarkable stretch of decisions over the past two weeks, Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought here as children. …
Roberts has sought to defend the court’s independence, and his votes often seem intended to keep the court from moving too quickly to the right, even if that is where he is more comfortable.
“I find it hard to explain his body of work without some theory that he’s playing a long political game,” said Daniel Epps, a law professor at Washington University in St. Louis. “He wants to push the law to the right, but is extremely careful not to do things that will make the court too much of a political focal point, and thus hurt its ability to shape the law longer-term.”
Ahem. That isn’t actually “independence” at all; it’s a strategy of subtlety. Even if one was inclined to credit this as reality, it doesn’t square at all with the praise offered in the headline or the body of the piece as Roberts being a champion of independence. It just means that he’s biding his time for either better cases on which to act, or a larger majority to provide him more political cover — and that’s if one thinks Roberts sincerely wants to lead the court in that direction.
The only basis for the WaPo to headline that “With abortion ruling, Roberts reasserts his role and Supreme Court’s independence” is if they think the abortion ruling actually indicates Roberts’ future direction. McCarthy thinks that it does, and excoriates Roberts for his intellectual dishonesty in the June Medical opinion. The reliance doctrine in particular was nothing more than a smoke screen, McCarthy writes, making it clear that Roberts has no intention of bucking the cultural and political pressure to keep abortion sacrosanct:
Roberts concedes that “stare decisis is not an inexorable command.” His ode to its merits would be hilarious if not for what the new ruling portends. The principle, he says, 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.” So, in their “humility,” the justices elevate over the Constitution’s framework the “right” they have manufactured from whole cloth — courtesy of some dizzying blather about deriving “penumbras” from “emanations.”
Roberts also elides mention of the inconvenience that none of those who first answered “the questions of yesterday” would have thought it possible that the Constitution guaranteed a right to terminate the unborn. And while, last year, he was telling us the takings precedent had to go, even though people had been inured to it for 34 years, today he said the four-year-old abortion precedent had to be preserved — even though there hasn’t been time for societal arrangements to become ingrained, and the question arose precisely because the Court’s abortion jurisprudence is so slipshod.
Note that Roberts had an out here. He could easily have decided that the plaintiffs did not have standing. As Justice Clarence Thomas explains in a withering dissent, the parties objecting to Louisiana’s law were not women whose purported right to abortion was being burdened; they were abortion providers who sought to raise the claim on the women’s behalf. A court does not have jurisdiction unless the parties before it have standing — i.e., unless they are asserting a denial of their own rights. Roberts, moreover, is typically a stickler on this point — the New York Times has described him as “the Supreme Court’s leading proponent of the standing doctrine.”
So he didn’t just protect abortion. He went out of his way to protect it.
McCarthy also accuses Roberts of pusillanimity as well:
The Court’s June Medical Services ruling is not about the law. It is about politics, as these late-June decisions often are. Roberts was fine with dissenting in an abortion case four years ago when there was no chance that his side would prevail. But the Left and the media-Democrat complex would go into meltdown if the Court were to approve significant restrictions on abortion democratically enacted by elected officials. Regardless of what the correct constitutional analysis may be, Roberts is not going to allow himself or the institution under his leadership to be subjected to such condemnation. Conservative condemnation he’ll take in stride, but not the rebuke of the highbrow.
Indeed. If Roberts had issued a well-structured, fully supported opinion in a 5-4 ruling on June Medical that reversed Whole Woman’s Health, the Washington Post would not be singing hosannas to Roberts’ consistency, nor would the NYT reference his position as “the Supreme Court’s leading proponent of the standing doctrine.” They would have ripped him to shreds by insisting that politics drove the decision — and the media would have gone on a months-long tirade about politicization. Oddly, though, they aren’t too concerned about politics when it comes to the four-justice bloc that refuses to even consider issues like standing in abortion cases.
The New York Times holds off on celebrating Roberts’ newly minted “independence” by pointing out that more direct challenges to abortion are in the pipeline:
For anti-abortion activists, Monday’s Supreme Court ruling against a Louisiana law delivered a stinging and surprising setback. But perhaps not for long.
The anti-abortion movement has a long pipeline of new cases that, if taken up by the Supreme Court, could present a more direct challenge to Roe v. Wade, the 1973 ruling that established federal protection for abortion. As of June, there were at least 16 abortion cases before United States appeals courts, the last step before the Supreme Court, according to lawyers at Planned Parenthood Federation of America. …
The decision on Monday, the first major abortion case since President Trump shifted the court’s balance of power to the right, also showed for the first time that Justices Neil M. Gorsuch and Brett M. Kavanaugh sided with the anti-abortion cause, as hoped by longtime activists. The ruling will only further the push by social conservatives to re-elect Mr. Trump so he might have a third opportunity to nominate a justice in time to rule on more significant abortion cases working their way up to the Supreme Court. Many of those laws would have a far greater reach than the Louisiana case.
As long as the court remains in its current configuration, don’t expect any different outcomes. And one has to wonder how long it will take for Kavanaugh and Gorsuch to trade actual independence for media-certified “independence” in the manner Roberts has.