The Whole Woman’s Health v Hellerstedt ruling four years ago, illustrated for the world on Monday, just how hypocritical Supreme Court Justice John Roberts is.
But we begin with the makeup of the Supreme Court. After it sided with the LGBTQ in the recent Title VII case, we wondered last week, just how conservative that Court really is. Most assume that Neil Gorsuch’s and Brett Kavanaugh’s additions have brought balance; with four liberal Justices, four conservative ones and one moderate; that being Justice John Roberts.
But while Kavanaugh has mostly ruled in a conservative manner, (little wonder then, why his nomination was so vehemently opposed); Gorsuch has sided with the liberal Justices on more than one occasion.
Besides Gorsuch’s more than questionable conservatism, is the question of John Roberts’ assumed non partisanship. During the buildup to the Supreme Court’s “first major ruling on abortion rights in the Trump era”; the mystery was how the “moderate” John Roberts would rule. Would he side with the liberals or with the conservatives?
Well Monday brought Roberts’ emphatic answer. As reported by The Hill, “The Supreme Court on Monday struck down a Louisiana abortion law, handing a win to abortion rights advocates who feared the conservative court would break with past rulings to rein in protections that emerged from the landmark decision in Roe v. Wade.”
Again, is the Supreme Court, despite Trump’s additions, really conservative? Despite The Hill’s above assertion, the court is proving to be the opposite of conservative.
The Hill reported further that “The justices voted 5-4 to invalidate Louisiana’s admitting-privilege law in the first major abortion ruling of the Trump era, which came after the court struck down a nearly identical Texas restriction four years ago.”
“Chief Justice John Roberts joined the court’s four liberals in ruling against Louisiana.” according to the report. And “In a concurring opinion, Roberts said his vote was guided by deference to prior rulings, particularly the court’s 2016 decision in Whole Woman’s Health v Hellerstedt, which struck down a nearly identical Texas law.”
But how much deference to the 2016 Whole Woman’s Health v Hellerstedt ruling could Roberts have had, given he actually dissented in that case? If he truly were consistent, he would have dissented in this one as well. “JUSTICE ALITO, with whom THE CHIEF JUSTICE [Roberts] and JUSTICE THOMAS join, dissenting.” is how the dissenting portion of that ruling opens.
Alito, representing the views of Roberts and Thomas, wrote in part that “The constitutionality of laws regulating abortion is one of the most controversial issues in American law, but this case does not require us to delve into that contentious dispute. Instead, the dispositive issue here concerns a workaday question that can arise in any case no matter the subject, namely, whether the present case is barred by res judicata. As a court of law, we have an obligation to apply such rules in a neutral fashion in all cases, regardless of the subject of the suit. If anything, when a case
involves a controversial issue, we should be especially careful to be scrupulously neutral in applying such rules.”
“The Court has not done so here.” Alito declared.
He further explained that “Shortly after Texas enacted House Bill 2 (H. B. 2) in 2013, the petitioners in this case brought suit, claiming, among other things, that a provision of the new law requiring a physician performing an abortion to have admitting privileges at a nearby hospital is “facially” unconstitutional and thus totally unenforceable. Petitioners had a fair opportunity to make their case, but they lost on the merits in the United States Court of Appeals for the Fifth Circuit, and they chose not to petition this Court for review. The judgment against them became final.”
“Under the rules that apply in regular cases,” Alito adds, “petitioners
could not relitigate the exact same claim in a second suit. [author’s emphasis] As we have said, “a losing litigant deserves no rematch
after a defeat fairly suffered, in adversarial proceedings,
on an issue identical in substance to the one he subsequently seeks to raise.”
Alito concluded: “In this abortion case, however, that rule is disregarded.
However, as we’ve already mentioned, Roberts, who had previously sided with Alito and Thomas in the Whole Woman’s Health v Hellerstedt case, leaned on precedence to justify his switch of opinion. “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.” Roberts wrote.
How cowardly and hypocritical. But considering Roberts was appointed by former president George W. Bush, it is not surprising. Rather, it is typical of mainline Republicans and Fairweather conservatives.
So as it turns out, the Supreme court hasn’t become more conservative after all, meaning thousands more of the unborn will be murdered (lawfully) in the United States.
CNN’s Jeremy Toobin perhaps put it best about Roberts and his decision. “It is a major decision. It is a major message that Chief Justice Roberts may not be who we thought he was.”