By Kevin Daley
Chief Justice John Roberts has made common cause with the Supreme Court’s liberal bloc as late, breaking with his conservative colleagues on cases relating to abortion, the death penalty, and President Donald Trump’s revised rules for asylum seekers.
Whether Roberts’s recent maneuvers reflect a substantive change in his approach to cases remains to be seen. In isolation, it’s difficult to know what to make of the chief’s votes.
That he is parting with his conservative legal views seems unlikely. This, after all, is a jurist who voted to uphold the federal Partial-Birth Abortion Ban Act and strike down limits on firearms possession, corporate campaign expenditures. and all manner of race-conscious programs. Yet his recent moves are all the more interesting for that very reason.
Roberts has twice sided with the liberal bloc on abortion-related cases. In the first instance, the chief and Justice Brett Kavanaugh voted against review of a lower court decision favoring Planned Parenthood in December 2018. That petition did not directly broach abortion rights.
The case arose when Louisiana and Kansas disqualified Planned Parenthood, the nation’s largest abortion provider, from eligibility for state Medicaid funds. Planned Parenthood sued in turn, claiming the Medicaid law allowed it to circumvent a state administrative proceeding and bring its challenge straight to a federal judge.
The 5th U.S. Circuit Court of Appeals said it could. The high court was asked to decide whether that decision was correct.
The appeal was rejected 6-3, prompting a vigorous dissent from Justice Clarence Thomas, who accused the court of base politicking.
Another abortion dispute followed just weeks later. In that case, several health care providers asked the high court to temporarily block implementation of a Louisiana law called Act 620, which requires that physicians who perform abortions have admitting privileges at a nearby hospital. The providers said Louisiana’s law was almost identical to a Texas measure the Supreme Court struck down in a 2016 decision called Whole Women’s Health v. Hellerstedt.
Though a federal district judge found Act 620 unconstitutional under Whole Women’s Health, the 5th Circuit reversed and allowed the law to take effect. Faced with the law’s imminent implementation, the abortion providers asked the Supreme Court to bar its implementation while litigation continued.
The court granted that request on a 5-4 vote. As in the December case, Roberts sided with the liberal justices to enjoin Act 620 on an interim basis over the dissent of his conservative colleagues.
Abortion advocates say admitting requirements are simply a pretext to reduce access to reproductive care, claiming many providers struggle to comply with those regulations. In Whole Women’s Health, the high court made a similar finding, saying the Texas law burdened abortion access without obvious benefits for patients.
Given Act 620’s general similarity to the Texas law, many saw the Louisiana dispute as an important cue as to how the newly entrenched conservative majority will engage abortion cases. Allowing Act 620 to take effect would have been tantamount to overturning Whole Women’s Health — or severely restricting its value as precedent. On the other hand, barring the law’s application would indicate a more cautious approach to abortion.
Roberts clearly believes Whole Women’s Health was wrongly decided, since he was in the dissent when that decision was issued. His vote in the Louisiana case suggests he is unwilling to cabin or overturn prior decisions in emergency situations, as was the case here. It might also indicate an outright refusal to overturn a precedent so recently decided. It does not suggest that his skepticism of abortion rights has changed.
Trump’s Revised Asylum Rules
The Trump administration lost its bid to enforce new rules on asylum applications before the Supreme Court in December. The rule changes effectively disqualified any migrant who entered the country illegally from receiving asylum.
While the government argued its measure would improve the administration’s asylum policy, a federal district judge and the 9th U.S. Circuit Court of Appeals concluded it was squarely at odds with federal law and international agreements to which the U.S. is party.
U.S. District Judge Jon Tigar issued an injunction against the government’s policy in November 2018. After the 9th Circuit upheld that injunction in December, the Department of Justice (DOJ) asked the Supreme Court to lift Tigar’s order and allow enforcement of the rules while litigation continued.
The justices rejected that request on Dec. 21. Opinions do not usually accompany such announcements, and votes are not usually disclosed. However, Justices Thomas, Samuel Alito, Neil Gorsuch, and Kavanaugh took the rare step of noting their dissent, indicating that Roberts and the four liberal justices together rebuffed the administration’s application.
At an earlier phase of the case, the president drew a rare public reprimand from Roberts, after Trump accused Tigar of partisanship. The chief said the president was wrong to call Tigar “an Obama judge.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts 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.”
The justices seldom issue official public statements, let alone statements rebuking a sitting president. The closest corollary was a 2010 incident in which former President Barack Obama attacked the Supreme Court’s Citizens United decision during the State of the Union address, as the justices themselves looked on and Democratic lawmakers cheered. Speaking six weeks later at the University of Alabama Law School, Roberts said the State of the Union had “degenerated into a political pep rally” that may not warrant the court’s attendance.
As he parted ways with his conservative brethren twice on abortion petitions, so too has Roberts joined the liberal bloc in a pair of death penalty decisions this term.
The first decision, Moore v. Texas, involved a capital inmate whose case the court has repeatedly considered. Bobby James Moore was convicted and sentenced to death for killing a store clerk in 1980. Moore’s attorneys say he is intellectually disabled. The Supreme Court banned the execution of the disabled in 2002.
Moore’s first case before the justices asked whether Texas uses a permissible framework to assess mental competency. A five-justice majority led by Justice Ruth Bader Ginsburg said “no” in March 2017 and ordered the state to use a standard that is medically sound.
When the case returned to Texas, the Texas Court of Criminal Appeals again found Moore was competent for execution, prompting Moore’s second appeal to the high court. Moore charged that the state court essentially used the same factors the justices prohibited in their March 2017 decision. The Supreme Court declared that Moore is intellectually disabled on Feb. 19, practically saving him from execution.
Though the chief justice dissented from the March 2017 ruling, he joined the majority in the February case. In a brief separate statement explaining his thinking, Roberts reiterated his criticisms of the first Moore ruling. However, he said he felt compelled to join the majority because the Texas court clearly did not follow the 2017 decision.
“On remand, the court repeated the same errors that this Court previously condemned — if not quite [in word], certainly in substance,” Roberts wrote.
Another capital case touched the competency issue this term. That dispute arose in Alabama, where 67-year-old Vernon Madison asked for a reprieve from execution because he has dementia and can no longer remember the crime for which he was sentenced to die. Madison murdered a police officer who was responding to a domestic disturbance call at his home in 1985.
Writing for a five-justice majority that included Roberts and the four liberals, Justice Elena Kagan said memory loss is not a bar to capital punishment. A person may not remember their crime, she explained, but could easily comprehend the state’s interest in punishing them.
But that was not the end of Madison’s case. In a 2007 decision called Panetti, the Supreme Court said inmates must have a “rational understanding” of why they are being executed. Dementia, Kagan wrote, “can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the state wants to execute him. But dementia also has milder forms, which allow a person to preserve that understanding.”
In what may have been a compromise between Kagan and the chief, the majority said the Alabama courts should determine the severity of Madison’s dementia. A severely demented person may have a very tenuous grasp on reality, far short of the “rational understanding” required for capital punishment.
The chief’s apparent deal-making was too much for Alito, who wrote a cutting dissent in the Madison case. Alito argued the majority engaged in a bait-and-switch, in violation of the court’s operating procedures. The issue before the court, he said, was the memory loss question — and the memory loss question only — not whether Panetti covers demented convicts.
“Our whole system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted,” Alito wrote. He elsewhere said the majority “makes a mockery of our rules” and admonished the Supreme Court to “own up to what it is doing.” Kagan said Alito’s criticism was “incorrect” in a footnote to her opinion.
Playing the Long Game?
So what is Roberts up to?
One theory holds that the chief is steering the court away from trouble after the brutish national shriek-out that was the Kavanaugh confirmation. Having lingered too long in the cross-currents of raw emotion, Roberts may see approach-avoidance as the order of the day.
Yet sometimes trouble finds the court, its nimble gymnastics notwithstanding. The justices could not, for example, dodge a dispute as to whether the Trump administration may include a citizenship question in the 2020 census. Arguments in that case will come in April. The court was similarly forced to lift an injunction that forbade the government from enforcing Trump’s ban on transgender military personnel.
A qualified approach-avoidance hypothesis may be at work. Roberts wants the court to avoid controversy to the maximum extent possible — but sometimes duty demands a decision.
Another view posits the chief is simply keeping with his longstanding preference for incrementalism. By this telling, Roberts prefers to change the law slowly and then all at once.
This gradual approach is well-documented. It begins with a warning that a particular precedent or practice may no longer be valid, but gives the political process something like a grace period to address the problem the court has identified. If change is not forthcoming, only then will the justices intervene to correct the error.
The most famous example of Roberts’s incrementalist technique may be the 2013 Shelby County ruling, in which Roberts wrote the majority opinion invalidating the coverage formula used to enforce Section 5 of the Voting Rights Act.
Section 5 requires the Justice Department to review changes made to election laws in jurisdictions with a history of discrimination. Roberts was concerned the method used to determine which jurisdictions were subject to DOJ supervision was outdated and unconstitutional.
In a 2009 case, the chief justice urged Congress to update the 30-year-old coverage formula. When no legislative fix came by 2013, Roberts finished the work he began in 2009 and declared the formula unconstitutional. Critics blasted the decision, arguing it effectively gutted a landmark civil rights law.
The incremental method was also at work during the court’s 2017-2018 term in the Janus decision, which struck down agency fees (or mandatory union dues) as unconstitutional under the First Amendment.
The 5-4 decision was widely expected, as the court’s conservative majority had criticized agency fee practices as early as 2007. Their criticisms became more explicit in a pair of cases from 2012 and 2014. Those signals left no doubt as to what the court was preparing to do, while affording policymakers and labor leaders time to make changes.
By the usual telling, the incrementalist method has two virtues. First, it promotes stability in the law by avoiding sudden changes to precedent. Second, it protects the integrity of the judiciary. Judges who move quickly and decisively have a whiff of activism, which conservatives purport to avoid.
The chief justice might believe it is best to move slowly or it may well be that nothing is afoot. Perhaps Roberts is simply deciding cases and controversies before him.
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