John Yoo: Supreme Court Decisive Vote: What's Behind John Roberts' Legal Gymnastics?


By a 5-4 vote, a fractured Supreme Court dismissed Louisiana's effort to regulate abortion by requiring that abortion doctors have admission privileges to local hospitals. Court President John Roberts agreed with four liberal judges that state law imposed a "substantial burden" on a woman's right to abortion.

While the decision guarantees that abortion will continue to affect our politics, it may be an even more important sign of Roberts' determination to thwart President Trump's agenda to remake federal courts.

June Medical Services v. Russo shows Roberts in good shape as a legal gymnast. Four years ago, in Whole Women’s Health v. Hellerstedt, the president of the court had voted defend An identical Texas law. However, she lost that case because Judge Anthony Kennedy joined the liberal wing of the court, Judges Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, to discover that the burdens on access to abortion outweighed the alleged benefits of regulation.


With President Trump's 2018 appointment of Brett Kavanaugh to replace Kennedy in retirement, conservatives could have justifiably expected the court to finally rule out the substantial burden test, first presented in 1992 in Planned Parenthood v. Casey.

Trump's appointment of Judge Neil Gorsuch in 2017 would not have had that effect, because he replaced Judge Antonin Scalia, a fierce enemy of Roe. But Trump supporters, many of whom voted for him to change the court in a more conservative direction, would have believed that Kavanaugh's appointment would lead to the end of Roe.


Those hopes were dashed on Monday. While he refused to join the opinion of liberal judges in Russo, Roberts voted to repeal Louisiana law anyway in order to adhere to the past precedent.

"The legal doctrine of look decisis requires that, in the absence of special circumstances, we treat similar cases equally, ”wrote Roberts in attendance. “Louisiana law imposes a burden on access to abortion as severe as that imposed by Texas law, for the same reasons. Therefore, Louisiana law cannot be upheld under our precedents. "

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Roberts still claimed that he remained true to his legal principle. He continues "believing that the [Texas] case was wrongly decided." But he said the question was whether to "comply with it in the present case."

Conservatives in court legitimately questioned Roberts' commitment to the Constitution. In a powerful dissent, Judge Clarence Thomas declared that the look decisis "It does not correspond to our judicial duty under Article III, which requires us to faithfully interpret the Constitution."

Instead, he wrote, "when our earlier decisions clearly conflict with the text of the Constitution, we must privilege the text over our own precedents." Because Roe and Casey rely on a "demonstrably wrong interpretation of the Constitution," Thomas concluded, "we should not apply them here."

It is the task of the court to defend the Constitution, not its previous cases. If your precedents conflict with the Constitution, you must reverse them, as well as refuse to enforce executive orders or statutes that violate the Constitution.

Roberts has now thwarted President Trump's efforts to remake federal courts.

Why would Roberts vote to repeal a law that he believed was constitutional only four years ago? Your claim tolook decisisnot convincing If Roberts were right, the court should never have decided Brown v. Board of Education, which declared the segregation unconstitutional, as it annulled Plessy v. Ferguson. Roberts himself voted last year to override the precedents related to the Take Clause and two years ago against mandatory union dues.

Politics may well explain Roberts's rush to the pro-abortion side of the court. Now he has thwarted President Trump's efforts to remake federal courts.

Consider your votes only this term. Roberts has halted the effort to override Roe and Casey on Monday. Last week, in Regents of California, he cast the fifth vote to block Trump's order ending the Obama administration's Deferred Action for Children and Deferred Action for Parents programs, even though the courts had upheld unconstitutional orders. . Two weeks ago, in Bostock County v. Clayton voted to extend federal protections against discrimination in the Civil Rights Act of 1964 to gay and transgender employees.

Trump has set records for the speed and number of his lower court appointments, and has chosen conservative candidates unmatched by any previous president in his qualifications and intellect. He has appointed two Supreme Court justices who generally voted with staunch conservatives Thomas and Samuel Alito. But it has come to nothing with Roberts shifting to the swinging center position once held by Judge Kennedy.

Roberts supporters will argue that the chief justice will keep the court out of politics for an election year. In today's abortion decision, he has planted the court in a very popular decision; Polls suggest that Americans support the right to abortion but with reasonable limits. It has achieved the same moderation with this month's gay rights and immigration cases, the results of which coincide with the preferences of many.

Roberts can be argued that by restricting conservatives in court and moderating their course, he has eliminated the Supreme Court as a target for a possible Biden presidency.

But Roberts' mistake is playing politics. If he seeks restraint, he will respond to the political environment, which will only encourage more political efforts to put pressure on him and the court.

The chief justice tried something like this in 2012, when states challenged ObamaCare for exceeding the powers of the federal government. Following the oral argument, Democratic elected politicians launched unprecedented political attacks on Roberts and the court. Roberts reportedly changed his vote to defend ObamaCare, and in doing so confirmed a popular program, but at the price of diluting the careful limits of the Constitution on the balance between Washington, D.C. and the states.

Today's legal gymnastics may have a similar purpose behind them. But they are a game of losers.


In trying to keep the court in a moderate, low-key position, Roberts forgets that the advancement of popular programs remains the job of the President and Congress, whom people elect for that purpose. The role of the court must continue to be to enforce the Constitution against popular wishes; otherwise, we could dispense with a Constitution and let the elections decide everything.

By revealing his political concerns, Roberts will only further stimulate the politicization of the court, the political campaigns to influence the judges, and the circus that has become our confirmation process. By trying to protect the court in the short term, Roberts can harm him in the long term.



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