The argument for caution: Justice Kavanaugh’s dissent in June Medical Services, L.L.C. v. Gee

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 Importance of Being Chief Justice

I am delighted to present our first guest post, from my colleague Lawrence Friedman.

Successful lawyers excel at framing arguments. And for no lawyer in the United States is this skill more important than Chief Justice John Roberts. All of the justices of the Supreme Court seek to frame issues in ways that makes the results they reach seem inevitable. But only the chief justice speaks with the authority of his office outside the confines of the Court’s written opinions, opportunities that he seeks to maximize to ensure all of us that, regardless of how they rule in particular cases, the federal courts are just going about their business.

Consider two recent examples. The first is the chief justice’s response to President Trump’s belief that judges rule against his administration on the basis of politics. The chief justice would have none of it. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

In each of these three sentences, Roberts essentially made the same point: federal judges are independent of politics and treat all who come before them equally. Note that Roberts did not dispute that federal judicial appointment process is political. Rather, he framed the issue in terms of what judges do after that process has ended.

The second example comes from the Chief Justice’s 2018 Year-End Report on the Federal Judiciary. This annual update on the workload of the federal courts typically addresses a recent issue of note to the federal court system. All government reports should be so readable.

This year, the Chief Justice begins by recounting Justice Louis Brandeis’s effort, in 1928, to draft a dissent in Olmstead v. United States—an opinion that foreshadowed a doctrinal change nearly four decades later to the judicial understanding of the Fourth Amendment’s privacy protections.

The Brandeis story captures the way in which the courts work – by reasoning their way to particular conclusions – and the nature of doctrinal change over time. And the story highlights the importance of judicial law clerks. Clerks are recently-graduated law students who assist the federal judiciary at all levels in resolving cases by providing research and drafting assistance.

But the story is not just about the importance of this resource to the judiciary. It also frames the Chief Justice’s report on the efforts of the Federal Judiciary Workplace Conduct Working Group to determine the changes needed to judicial conduct codes to ensure that they adequately reflect concerns for confidentiality, mechanisms for reporting misconduct, and processes for investigating complaints.

As written, the report achieves its purpose. Members of Congress and the general public who take the time to read it are likely to be satisfied with the judiciary’s management of conduct issues and conclude there is no need for monitoring from outside. The judiciary, in other words, can take care of itself.

The point here is that, unlike his colleagues, Chief Justice Roberts must always keep an eye on the federal judiciary’s institutional reputation. The independence of the third branch is more fragile than that of the other departments of the federal government. The courts are possessed, as Alexander Hamilton famously put it, of neither the purse nor the sword. Congress, for example, controls not just the judiciary’s budget, but both the number of judges at every level and their jurisdiction.

We live in a time when the President of the United States regularly belittles the institutions of democracy, a time when serious proposals are being floated in the new House of Representatives to expand the number of Supreme Court justices to counter the perceived effect of recent appointments. Given his recent statements, the Chief Justice appears to be acutely aware that the federal judiciary’s independence, and popular respect for its rulings, turns on the extent to which the people believe that judges, once appointed, have no side to take in particular cases, and can keep their own house clean. If the pitched battles over Brett Kavanaugh’s appointment and partisan gerrymandering are any guide to the future, the chief has his work cut out for him.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.