(This article first appeared in the American Thinker)
On June 29, 2020, United States Chief Justice John G. Roberts let down constitutional conservatives once again — this time on abortion. In June Medical Services, LLC et al v. Russo, Roberts cast the tiebreaking vote striking down a Louisiana law requiring abortion doctors to obtain admitting privileges at a local hospital in order to protect women’s health.
What made Roberts’ vote even more disappointing is that he voted the opposite way a few years ago in a nearly identical case in which the Court struck down a similar Texas abortion law on the same grounds. To be fair, Roberts dissented in that case mainly because of the doctrine of res judicata — the claims brought by the Texas abortion providers had already been heard and dismissed in a prior case, and thus should not have been raised again.
However, in that case, Roberts explained that he would have allowed the Texas law to stand in those geographical areas in which it was easy for abortion doctors to obtain admitting privileges. But, in the Louisiana case, Roberts shut the door on these laws entirely. Why?
Roberts claims the doctrine of stare decisis made him do it. Stare decisis (“to stand by things decided”) is the legal term for fidelity to precedent. Roberts quoted the eminent legal scholar, William Blackstone, who wrote, “It has long been ‘an established rule to abide by former precedents, where the same points come in judgment again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.’”
Stare decisis, however, is not law and is not in the Constitution. Its application in cases involving erroneous prior decisions is particularly jolting. Stunningly, Roberts declared that even though he still believes the Texas case was wrongly decided, he chose to apply its holding to the Louisiana case. Roberts argued that by applying a prior decision he believes to be wrong he is, to paraphrase Alexander Hamilton in Federalist 78, “avoid[ing] an arbitrary discretion in the courts.”
In short, Roberts believes it’s better for the Court to be consistently wrong than for it to correct bad decisions. Do you think that Roberts would state publicly that previous decisions such as Dred Scott, in which the Court held that black Americans were not United States citizens, and Plessy v. Ferguson, in which the Court upheld racial segregation laws for public facilities, should not have been overturned because of stare decisis? Not in a million years.
Ralph Waldo Emerson wrote, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” Any rational lay person understands the absurdity of continuing to apply bad law. Yet, the Chief Justice is often referred to as one who acts the statesman, who understands the importance of the reputation of the Court, and as a result he votes down the middle of the road in controversial cases in order to protect the Court.
He’s wrong. Roberts is not protecting the Court, he is harming the Court, the Rule of Law and the Constitution when he continues to apply bad law to new cases.
However, where Roberts disappoints, Justice Clarence A. Thomas delights. In a dissenting opinion, Thomas lit a torch to the Court’s abortion jurisprudence. Thomas declares, referring to the Court’s infamous decisions in Roe v. Wade and Planned Parenthood v. Casey, “…those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”
Thomas correctly explains, “The Court’s current ‘formulation of the stare decisis standard does not comport with our judicial duty under Article III,’ which requires us to faithfully interpret the Constitution.” In short, the U.S. Constitution is the supreme law of the land, not prior Supreme Court decisions. And justices must do their duty to interpret and uphold the Constitution. Regrettably, no other justice joined Thomas’ dissent.
The four members of the liberal wing of the Court will always act to further solidify the “right” to abortion. They now have an ally in Roberts giving them the fifth and tiebreaking vote. Through Roberts and his application of stare decisis the Court, as it is currently constituted, will continue the legal farce that there is a right to abortion in the U.S. Constitution. This is bad news for those who believe in the right to life and for the lives of the innocent unborn.
Marc A. Scaringi is a lawyer in Harrisburg, Pennsylvania, a 2016 and 2020 elected Delegate to the Republican National Convention and hosts The Marc Scaringi Show, a weekly talk radio show on I Heart Radio.