Chief Justice John Roberts and the Nature of Constitutional Jurisprudence

| July 14, 2020

The Supreme Court’s decision in its latest abortion case, June Medical Services v. Russo, was a surprise to many.  Some welcomed the ruling, while others read it with anger. But perhaps the most common reaction was confusion.  Why had Chief Justice John Roberts voted with the “liberal” justices to strike down a law restricting abortion that was “almost word-for-word identical” to a Texas law that he voted to uphold in 2016?  Had he changed his mind to become more protective of abortion?  Was his decision motivated by political pressure?  Or was there some other reason?


At issue was a Louisiana statute that required any doctor who performed abortions to be in good standing on the medical staff at a hospital that is within 30 miles of the clinic where the abortion is performed.  The justification for the law is that the physician performing the abortion must have admitting privileges at a local hospital in case of complications during the procedure.   The challenge is that the law is a thinly veiled effort to outlaw abortion in Louisiana.

Doctors who work at abortion clinics almost never need to admit patients to hospitals.  The evidence was that the June Medical Services clinic has served over 3,000 women a year for 23 years, and in that time of performing 70,000 procedures only four (4) women have needed to be transferred to a hospital.  As a result, its doctors do not have admitting privileges at hospitals because they cannot meet the threshold to qualify.  If the Louisiana statute was upheld, every abortion clinic except one in the state would close, which is what the critics of the law say is its primary purpose.


This case drew national attention because of a similar statute from Texas was declared unconstitutional, in Whole Woman’s Health v. Hellerstedt, a 5 – 3 decision.  The five justice majority there summarized the constitutional law concerning abortion: that a provision of law is constitutionally invalid if its “purpose or effect” is to “place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  Chief Justice Roberts had voted with the dissent.

But since then, the empty seat on the Court has been filled by Justice Gorsuch, and one of the five (Justice Kennedy) has retired and been replaced by Justice Kavanaugh.  And so June Medical Services drew national attention, to see if these changes would change the direction of the Court.  Indeed, the Louisiana legislature had passed its statute, almost word-for-word identical, to see whether the change in the Justices would result in a change in the law.


When the decision of the Supreme Court was announced, there were six different opinions, none of which could garner five votes for a majority.

Four justices (Justices Breyer (who wrote the plurality opinion), Ginsburg, Sotomayor, and Kagan) held that the Louisiana statute was unconstitutional for the same reasons as the Texas statute: that “the results [of enforcement of the statute] … is that many women seeking a safe, legal abortion in Louisiana will be unable to obtain one [and that] those who can will face substantial obstacles in exercising their constitutional right to choose abortion due to the dramatic reduction in abortion services.”  Justice Breyer found the statutory restrictions unnecessary, and the burdens placed on women to substantially outweigh any benefits.


Chief Justice Roberts did not join in the plurality decision.  His concurring opinion said expressly that he still held to his position expressed in Whole Woman’s Health v. Hellerstedt – that the case was wrongly decided and that the legal argument of Justice Breyer was wrong.  Nevertheless, he voted to form a majority to strike down the law.

It would do America well to stop and think through his reasoning.

Today, America sees the Supreme Court as a political prize to be won.  Both of the major political parties make campaign promises concerning appointments to the Court who can be relied upon to vote in a predicable way. As a result, over the past 30 years, the Court has gone from being the most respected institution in America and the constitutional compass of the nation, to being viewed as a vehicle of political power – where each party seeks to win in court the battles what they may have lost at the ballot box. In short, the common thinking, fostered by political parties and pundits, is that the goal is to get five votes from the nine justices.

Chief Justice Roberts does not see it that way at all. From his perspective, there are not nine votes, there is one Court.  The Court does not change direction based on the change of one justice. If so, the Supreme Court would whipsaw back and forth with each new appointment.  If this was essentially the same statute and essentially the same case, then the decision should be the same.

Chief Justice Roberts wrote that his decision “is grounded in a basic humility that recognizes that today’s legal issues are often not so different from the questions of yesterday.”  He believes that adherence to precedent “promotes the evenhanded, predictable, and consistent development of legal principles”; and “fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Chief Justice Roberts voted as he did so that “the law will not merely change erratically, but will develop in a principled and intelligent fashion.”  His vote was a rebuke to those who think that Supreme Court Justices are extensions of elected officials, who will cast “reliable votes” that get to a perceived desirable end.


So, where does all of this leave the legal questions surrounding abortion?

First, it is important to understand that this case was not brought by women seeking access to abortions – it was brought by doctors seeking to be able to perform abortions.  As such, the BIG questions were not before the Supreme Court.  Perhaps the most important line from Chief Justice Roberts’ concurring opinion is that “Both Louisiana and the providers agree that the undue burden standard … provides the appropriate framework to analyze Louisiana’s law.   Neither party has asked us to reassess the constitutional validity of that standard.”

The four justices of the plurality adhere to the balancing test, as to whether the burdens of any state law outweigh its benefits to women seeking an abortion.  Any law restricting abortion must both have a substantial benefit and not create an undue burden.

Chief Justice Roberts believes that any balancing must be left to the legislature, and that the Court’s only job is determine if the statute presents “a substantial obstacle” to a woman seeking abortion – which is a high standard to meet in his opinion.

Justices Alito, Gorsuch and Kavanaugh dissented, saying that this case was very much different than that from Texas, because although the law was the same, the factual situation was different, and the doctors in question could obtain the admitting privileges without much trouble.

Justice Thomas, alone, maintains his long standing position that the Supreme Court’s abortion jurisprudence is fundamentally wrong and that there is no constitutional right to abortion. His position is that a state legislature can regulate abortion as it does any other medical procedure.

This case, with its six (6) different opinions, is not a substantial victory for pro-choice advocates, who sought to expand the legal justification for an abortion.  It does give court watchers insight into the positions of Justices Gorsuch and Kavanaugh.

Most of all, it reasserted that the Court will not change its ruling based only on a change in the justices.  It is a message that will be hard to hear through the rhetoric of a Presidential election year, but one that we should all be listening to carefully.

Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.