June 30, 2020

Roberts Rules of Disorder

The chief justice is contorting the Constitution to reach his desired conclusions.

Chief Justice John Roberts seems to have one guiding principle: Uphold the integrity of the Supreme Court. As Erick Erickson puts it, Roberts “is more about protecting his turf than preserving an ideology.” Ironically, his methods of doing so are frequently yielding the opposite result. Roberts has become, as National Review’s editors write, “the most politically calculating of the justices,” all while claiming he wants to steer the Court clear of politicized outcomes. The damage to our Constitution and Rule of Law is hard to overstate.

Roberts still does deliver some better decisions, such as in yesterday’s ruling in Selia Law LLC v. Consumer Financial Protection Bureau declaring the Consumer Financial Protection Board structurally unconstitutional. The CFPB was Elizabeth Warren’s brainchild and a centerpiece of the 2010 Dodd-Frank “reform” bill that accrued to Washington vast power over the nation’s financial institutions, and it was effectively unaccountable to either the executive or the legislative branches. But even this win was limited. Roberts, on the narrowest possible ground, found that as long as the president can remove the CFPB director, the constitutional conflict is resolved.

Meanwhile, Roberts delivered another body blow to Rule of Law and to judicial standards with his ruling in June Medical Services L.L.C. v. Russo, the case in which Roberts joined the Court’s four leftists to strike down a Louisiana law that put “health and safety” regulations on abortion clinics. Four years ago, Roberts ruled the opposite way in Whole Woman’s Health v. Hellerstedt, a case that dealt with a similar Texas law.

Why the change?

This time, Roberts explained, he had to follow precedent, not the Constitution. In other words, though he disagreed with the Court’s left wing on its reasoning, he reached the same result because of the Court’s previously ruling in the Texas case. “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,” Roberts wrote in his concurring opinion. “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.”

The trouble with this is glaringly obvious. Supreme Court decisions on slavery and segregation would still stand if precedent were the ultimate authority. Roe v. Wade was a travesty of judicial reasoning. It’s a ruling Justice Clarence Thomas called “farcical” in his Louisiana dissent, because it “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” And the result has been 60 million dead children. Planned Parenthood v. Casey was arguably even worse for following Roberts’s guiding principle here. As Dan MacLaughlin explains, Casey “upheld Roe v. Wade on stare decisis grounds while completely rewriting its theoretical basis and its practical guidance for lower courts.” In these most recent cases, the Court continued the trend of upholding precedent while shifting the reasoning.

We ask this both rhetorically and with a bit of hyperbole: Why is Roberts ever in the minority? Why dissent at all if the majority’s will becomes precedent and therefore binds future rulings? Of course, Roberts has ruled in plenty of cases against precedent, including on abortion law. He’s quite selective.

Roberts doesn’t want the Court doing the job of the legislature or the executive. That’s all well and good, but justices and judges have an obligation to rule based on the Constitution first. The man who once called himself an umpire has called far too many balls as strikes, and it’s inflicting lasting damage on Rule of Law.

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