A guest post by Lawrence Friedman
Some commentators expressed surprise last week when Chief Justice John Roberts cast the fifth vote to stay the enforcement of a Louisiana law restricting access to abortion in June Medical Services, L.L.C. v. Gee. That law creates an admitting-privileges requirement for doctors who seek to perform abortions. The law thus implicates the 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the Court struck down a Texas law requiring abortion providers to hold admitting privileges at nearby hospitals and to comply with other regulatory mandates. There, the Court reasoned that the Texas law served no rational purpose other than to unduly burden women seeking to exercise their right to choose. The stay in June Medical Services simply delays the Louisiana law’s implementation until the Court can take up its constitutionality in view of Hellerstedt, likely next Term.
Roberts’s vote favoring a stay should not have come as a surprise. Though the Chief has previously expressed doubts about the existence and scope of unwritten constitutional rights, he has been unwavering about the importance of adhering to precedent when it comes to maintaining the legitimacy of the Supreme Court itself. Staying the Louisiana law in light of Hellerstedt promotes that legitimacy by demonstrating the Court’s respect for its own recent jurisprudence.
More interesting than the Chief voting to impose the stay was Justice Brett Kavanaugh’s dissent—the only separate opinion. While Justices Thomas, Alito, and Gorsuch did not disclose why they voted to deny the plaintiffs’ application for a stay, it would not be unreasonable to conclude that either (a) they do not view the Louisiana law as imposing an undue burden under the controlling precedent, Hellerstedt; or (b) they do not view Hellerstedt or the antecedent decisions from which it springs, Planned Parenthood v. Casey and Roe v. Wade, as correctly decided. If you do not believe that the plaintiff’s theory of the case is grounded in a sound constitutional principle, it makes sense that you would not be inclined to permit the most recent articulation of that unsound principle to control.
In his dissent, Justice Kavanaugh made clear that he did not oppose the grant of the stay because he questions Hellerstedt’s constitutional footing. Rather, he viewed the stay as unnecessary given that the plaintiffs had raised a pre-enforcement facial challenge to the Louisiana law. In the absence of actual facts about the law’s effect, Kavanaugh noted, the parties offered, “in essence, competing predictions about whether [the doctors could] obtain admitting privileges” pursuant to the law. He favored denying the stay to see which circumstance would develop—whether the doctors in question would gain the admitting privileges the law required, which would obviate the plaintiffs’ challenge under Hellerstedt; or whether the doctors would be denied admitting privileges, which arguably would impose an undue burden under Hellerstedt.
This line of reasoning distinguishes Kavanaugh’s position in relation to the presumed views of the other dissenters. First, his dissent reflects the importance of factual development to judicial review: with facts in hand, the court can appreciate how regulations work in practice, and whether their enforcement is designed to undermine constitutional values. Second, Kavanaugh’s dissent shows some interest in having the court move incrementally, particularly in a case that implicates a recent precedent. There is value in slowness: as Chief Justice Roberts acknowledged in his confirmation hearings, adherence to precedent “plays an important role in promoting stability,” by showing appropriate respect for the decision-making limits of nine unelected judges.
Indeed, if Kavanaugh’s dissent is any indication, the Chief Justice has another colleague who appreciates that the Court’s ability to perform its constitutionally assigned role is inextricably connected to the esteem in which it is held. Consider the decision last Term in Carpenter v. United States, in which the Court concluded that, even when we share certain information with others, we have not necessarily sacrificed all privacy protections under the Fourth Amendment. Writing for the majority, Roberts made clear that context matters, and Carpenter explicitly saves for another day numerous questions regarding the reach of its holding. At the decision’s end, Roberts quoted with approval Justice Felix Frankfurter’s counsel that the Court, in the face of potentially far-reaching changes, should “tread carefully.” Kavanaugh’s short dissent in June Medical Services suggests that he may well be on board with that program.
The Interdependent Third Branch 