This Supreme Court term offered many surprises to some with the outcome of various high-profile decisions ranging from issues related to immigration and DACA to gender discrimination and abortion rights to school choice with religious private schools. Chief Justice John Roberts for good or for bad- whichever side you take exerted his influence in a breakout term for him. With the retirement of Justice Kennedy and Kennedy’s replacement by Justice Kavanaugh, the Chief has found himself in a unique position as the “Chief” swing vote on several major cases. In this term, he positioned himself in the more liberal camp for much of these opinions, thus drawing the ire of several conservatives. Justice Kavanaugh, who many thought would be voting in lock-step with the Chief based on their similar background of jurisprudence found himself on the opposite side of the Chief in several of the opinions, often aligning himself with Justice Thomas, Justice Alito and most of the time Justice Gorsuch. It will be interesting to note how this line of jurisprudence continues to develop in the coming years. We will cover Justice Kavanaugh this term in a future piece.

As we have discussed in prior pieces, however, the way Roberts has handled this term is not entirely surprising when it is considered that this is an election year and he seems to want to take the Court out of a controversial spotlight with several culturally charged issues. While it is easy to disagree with his present view, one could foresee the Court being aggressive next year with major cases when the atmosphere will likely be less charged. Roberts has presented himself as a judicial gradualist, not in the same vein as his predecessor and former boss, the late Chief Justice Rehnquist who was more inclined to tackle tough points, despite the societal landscape.

In this piece we will discuss Roberts in Espinoza v. Montana Department of Revenue, with regard to the school choice for religions private schools and June Medical Services v. Russo case with regards to the abortion issue.  

Espinoza v. Montana Department of Revenue

We have discussed this matter in our April piece in anticipation of the Supreme Court’s decision. By way of summary, it concerned a state tax credit law passed in Montana that offered credit to companies and individuals that donate to private school scholarship funds. There are several private schools in Montana that are classified as religious and would have benefited from the program. The Montana Supreme Court ruled the scholarship aid program unconstitutional per the Montana state constitution because there was an opportunity for direct or indirect funding to religious schools. This archaic provision in the Montana state constitution originated from the Blaine Amendments passed in the late 1800s in various states that sought to restrict the influence of Catholic educational opportunities that were beginning to develop.

The U.S. Supreme Court, in a 5-4 vote authored by Chief Justice Roberts found that the Montana Constitution’s no-aid provision to religious private schools was unconstitutional and in violation of the Free Exercise Clause.

 He made reference to the recent Supreme Court case, Trinity Lutheran v. Comer that held “disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny. In that matter the Supreme Court ruled it was valid for the state to provide funds for tire pieces at a religious school’s playground, a Missouri law there had previously prevented funds from being provided to religious educational institutions for such a function. The Supreme Court there found the actions discriminatory. He compared that case to the Montana case by articulating that the Church was treated in a discriminatory manner just by its nature and status and was thus subject to strict scrutiny. The government failed to meet its burden and the Montana decision was invalidated.

Roberts later proceeded to discuss the history and tradition of various examples of states and the federal government providing grants to religious based private schools. On the opposing end, he also was careful to highlight that the Blaine Amendments had served an anti-Catholic purpose and were rooted in bigotry and should not be considered as supportive sources for Free Exercise claims.

When assessing Roberts’ opinion here, he showcases his gradualist approach, in the context of law and religion jurisprudence. He built off the model set forth in Trinity Lutheran a few years prior to reaffirm that religious private schools are also entitled to protection and support under the Constitution. While there are other areas in which the Roberts Court may have disappointed, religious freedom remains as one of its strengths. Moving forward, expect more religious claims to be brought that look to reaffirm our early Constitutional understandings of the relationship between religion and government.

June Medical Services v. Russo

The issue of abortion has unleashed a flurry of controversy since the Roe v. Wade decision that legalized abortion in 1973. As discussed in prior pieces, this decision removed a historically state regulated issue and placed it in the hands of the judiciary and since that point, the Supreme Court has found it very difficult to shed the political spotlight. With passion on both sides of the issue, it has become defining in Supreme Court confirmation hearings since the days of Robert Bork to Brett Kavanaugh. When a case arises such as the one here that even gently touches on the issue, it creates a national following. Chief Justice Roberts’ decision here baffled many with him taking the seemingly opposing side a few years prior on a similar case, but as you will see in this decision Roberts’ reliance on stare decisis (offering strong leeway to prior decisions) was a deciding factor. Some have commented that on its merits, Roberts does not accept invalidating the law at issue, but in fact he has taken a position to shield the Court from further societal charged pressure in an election year.

The central issue in June Medical Services is the admitting privileges of doctors at hospitals when there are emergency abortion complications. The Louisiana law that was challenged had required in relevant part that: any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced,” and defines “active admitting privileges” as being “a member in good standing” of the hospital’s “medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient.”

The clinics at issue argued that the law was unconstitutional because among other things that it imposed an undue burden on the rights of the patient to obtain an abortion. The medical provider was thereby attempting to assert Constitutional rights in the stead of the individual. In a 5-4 decision, the Supreme Court ruled to invalidate the Louisiana law. Roberts joined the 4 liberal judges, but his reasoning diverged from their opinions.

In Judge Breyer’s majority opinion, he relied on Whole Woman’s Health v. Hellerstadt and Planned Parenthood v. Casey in assessing the undue burden that would be placed on women seeking an abortion based on this law. He found that the providers could assert rights on behalf of the women and was not convinced that admitting privileges bear any relevance to better outcomes for the women that would justify the law. The law hampered the ability of the abortion doctors to provide their services.

Most specifically, in Whole Woman’s Health, which the Court addressed in 2016 with Justice Kennedy still on the Court, the Court there found in relevant part that: the admitting-privileges requirement in a Texas law placed a substantial obstacle in the path of women seeking a previability abortion, constituted an undue burden on abortion access, and thus violate the Constitution. This was also a 5-4 decision with Justice Breyer again writing the majority decision, but the Chief Justice dissenting.

Chief Justice Roberts concedes in his concurring opinion in June Medical Services that he stands by his dissent in Whole Woman’s Health and believes the case was wrongly decided, but affirms the outcome of that decision on stare decisis grounds and adherence to precedent. He states that: “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.”

He also spends considerable time in his concurring opinion reflecting on the Casey decision and the concept of a “substantial obstacle” in obtaining an abortion. He also acknowledges that the undue burden standard that was embraced in Casey and cited in Whole Woman’s Health should be respected. In an even further revealing statement he articulated he would further adhere to the Casey holding that required finding a substantial obstacle before striking down an abortion regulation. Clearly, the Chief has shown his sympathy with the legal outcomes and effect of the prevailing major cases in abortion jurisprudence despite whatever personal reservations he may have. This does not bode well for those who consider some of the major opinions vulnerable.

There is much to criticize about this opinion. Most importantly, however, the stare decisis reliance as the central form of support for reaching the opposite outcome than he had a few years prior is troubling. Justice Thomas, in his dissent sufficiently critiques this reasoning. After providing a very thorough challenge to the third-party rights issue in the matter and critical commentary on the substance of abortion litigation to date, he proceeds into the stare decisis critique. He cites to one of his earlier decisions and reemphasizes that when our prior decisions clearly conflict with the text of the Constitution, we are required to “privilege [the] text over our own precedents.” From his view, Roe does not have a Constitutional foundation, thus reliance on the abortion right itself is faulty. He even went so far as to challenge the right to privacy jurisprudence stemming from Griswold v. Connecticut that eventually was a factor in the Roe opinion. Justice Thomas then cites recent cases in which Chief Justice Roberts, himself, has been a factor in overturning precedent. He further explains that the lack of uniformity on how the Court has interpreted abortion rights jurisprudence with pluralities and divisions in several cases diminishes the merit of any stare decisis analysis. The law is far from settled.

When all the above is considered, from the outsider it seems that the Chief used legally lite support to harmonize how he came to opposite conclusions in June Medical Services and Whole Woman’s Health. To address that stare decisis should be a primary source in interpreting the law “albeit special circumstances”, Roberts finds himself in a quandary. He does not proceed further to elaborate what constitutes such a circumstance and how his decisions to overturn precedent in other recent matters differ from the standard employed here.

In sum, Chief Justice Roberts has proven himself to embrace institutionalism during his tenure on the Supreme Court. While we recognize that society has been charged with controversy in recent years and arguably for an extended period of time with the abortion issue among others, it does not mean that we must abandon our Constitutional principles. The threat of court packing and radicalization from politicians with their targets focused on the Supreme Court is very real. Some have been willing to go to the extent of mainstreaming lies about prospective Court appointees to destroy life reputations. Others have threatened impeachment if a judge does not follow their view of the Constitution. While the position of the Chief Justice is not an easy one with the Court being in the cross-hairs, one cannot help but consider that part of this is the Supreme Court’s own doing- past generations of the Court willing to embrace a legislative role to reflect the supposed social agenda circulating at that point in history. This is not what the framers envisioned when they considered the role of the Supreme Court. What better way to remedy the mistakes of prior generations of the Court than taking a stand for the Constitution? In the short-term there will be an outcry, but the reward is worth it and will in fact be a step in the right direction of de-politicizing the Court.

As Publius described the role of the judiciary in Federalist 78, “It may truly be said to have neither FORCE nor WILL, but merely judgment”.  In good judgment, Chief, embrace the Constitution. This country is depending on you. Leave the force and will to address societal needs to the elected branches of government.