Will the perfidy of Chief Justice John Roberts finally help conservatives slay their false idol of “appointing better judges” and actually fight against the entire notion of judicial supremacy instead?
I take no pride in seeing my thesis on the judiciary being proven correct every week, but once again we see that once we regard even lower courts as supreme to other branches on purely political questions, then simply “appointing better Supreme Court justices” will not matter. Much like drinking coffee with a fork, the more we accede to judicial supremacy, only using all our capital to get “our guys” on the high tribunal, the more we lose more of the existing members to the system. John Roberts has long ago become the new Anthony Kennedy, a fact that is now becoming obvious even to conservative court-worshippers.
Last night, John Roberts joined the four liberal judges in putting an indefinite injunction on Louisiana’s commonsense abortion regulation, which requires that abortion doctors have active admitting privileges at local hospitals within 30 miles of their practice in order to perform abortions.
As longtime readers of this column know, Roberts has been joining the liberal justices for quite some time in allowing bad lower court injunctions to remain in place, surreptitiously ensuring that the left-wing judicial agenda remains untouched despite the supposed new orientation of the Supreme Court. He has done this in other abortion cases, immigration, election law, and with a crazy global warming lawsuit – always refusing to categorically rein in the lower courts for stepping outside of bounds of judicial norms. However, the Louisiana decision takes Roberts’ power play to a new level of active aggression against the Constitution. Unlike in the other cases, the circuit court opinion below him (in June Medical Services, LLC v. Gee) actually got this one right and reversed a trial court injunction on the abortion law. Now, Roberts is actively issuing an injunction that the Fifth Circuit blocked, as opposed to simply allowing a lower court injunction to remain in place. The new Anthony Kennedy indeed. Or worse.
Abortion is a greater right than the real rights
First, it’s important to recognize that once again the courts view themselves as vetoing bodies rather than outlets to grant relief to specific plaintiffs with an actionable grievance. The regulation for this law in Louisiana has not even been fully written, and no doctor has definitively been denied admitting privileges to a hospital. This is what distinguishes this case from the Texas law that the Supreme Court “invalidated” in 2016 in the Hellerstedt case. In Texas, a number of the abortion doctors clearly would have been denied hospital access, but there is no proof of such denial in Louisiana. This technicality is at the core of the dissent that Kavanaugh wrote in this case.
More broadly, it’s amazing to watch how our legal system somehow believes it’s constitutional for even the federal government to regulate every last aspect of health care. Yet when it comes to a state regulating the qualifications of someone performing a dangerous procedure and killing a baby, somehow that is always out of bounds. So, the feds, who were accorded no power over health care in the Constitution, can regulate the minutiae of which insurance plans a company can offer, but can’t impose commonsense health care regulations dealing with life and death, even after the horrors of Kermit Gosnell’s abortion clinic was discovered. This is the absurdity of all the abortion decisions.
Remember, in the Hellerstedt case, Roberts joined with the other conservative justices to say that such regulations are totally within bounds, even under the Roe and Casey precedent of a right to an abortion. Why is he reversing himself now?
Consider the radical nature of this ruling. Even an unambiguous right in the Constitution, such as the right to bear arms, would never be read even by a conservative justice as stripping states of the power to issue regulations on the type of firearm that could be carried, felons owning guns, or the places that are off-limits to carry, such as schools and courthouses. As Scalia wrote in Heller, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He made it clear that “commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Yet when it comes to the judicially concocted “right” to an abortion, we have even Republican-appointed judges essentially saying that the Constitution protects every abortion “whatsoever in any manner whatsoever and for whatever purpose.”
Roberts’ appalling hypocrisy
Some might suggest this has no bearing on how he will rule on the merits of the case, which will likely take another full year to adjudicate, but we already see the hypocrisy of Roberts in plain sight. When lower courts issue injunctions against Supreme Court precedent, including decisions Roberts himself recently wrote, he has no problem taking a hands-off approach to those lower courts. But somehow, when a conservative lower court merely allows a state to mind its own business in a case that might brush up against a recent Supreme Court decision he himself disagreed with and now has the votes to overturn, Roberts parachutes in to overturn the lower court.
We are witnessing this trend every day with immigration cases. After the courts took the unprecedented step of interfering with the president’s power to exclude aliens, a power upheld by the most foundational court precedent for 200 years, it took a full year for Roberts to finally slap them down in Trump v. Hawaii. Yet ever since that decision, one lower court after another has placed injunctions on other actions of the administration regulating the flow of migration, and Roberts has remained silent. He refuses to even hear the appeal from the most radical court decision of all – the Ninth Circuit attempting to force Trump to continue Obama’s illegal amnesty.
Roberts has telegraphed the message to liberal lower court judges that he is OK with them violating his own precedent to such an extent that now the lower courts are taking another bite at the travel ban case itself. A district judge in California is allowing a class action lawsuit from foreign nationals (who should never get standing) to proceed because they don’t like Trump’s waiver process for those getting exemptions from the travel ban. But Roberts already ruled last year that there are no limitations on the president’s power to stop visas altogether, much less place technical regulations on who can or can’t get waivers. Don’t expect Roberts to commandeer that lower court any time soon as he just did with the Fifth Circuit.
“Well, what if Ginsburg retires and then we get another appointment? Won’t that swing the court?”
If you believe that, you are more credulous than Charlie Brown with the football. There are already signs that Kavanaugh will be the next Roberts. And it was none other than Kavanaugh who saddled us with Roberts when he was White House staff secretary for President George W. Bush. We could have gotten the much better Michael Luttig onto the court.
For all the capital we have burned trying to get those who burn us onto the court, isn’t it time we use our political capital, messaging, and political power to return the courts to their original job?
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.