by Michael C. Dorf (cross-posted on SCOTUSblog)
Chief Justice John Roberts surprised some observers when he joined his four more liberal colleagues to grant a stay of the decision by the U.S. Court of Appeals for the 5th Circuit in June Medical Services v. Gee. The stay blocked Louisiana’s law requiring doctors performing abortions to have admitting privileges at local hospitals. The petitioners argued that the Louisiana law was substantially similar to the Texas admitting privileges law that the Supreme Court invalidated less than three years ago in Whole Woman’s Health v. Hellerstedt. The petitioners also contended that the distinctions drawn by the appeals court between the two states’ laws were unpersuasive. The chief justice dissented in Whole Woman’s Health. By voting to stay the Louisiana law, was he signaling a retreat from his position there? Does he now accept the court’s abortion jurisprudence as settled?
Maybe, but there is a simpler and likelier explanation. Roberts cares a great deal about the Supreme Court as an institution. When a state court or lower federal court defies or evades the high court’s precedents, it challenges the court’s authority. Accordingly, it is easy to imagine that the chief justice thinks Whole Woman’s Health and the cases it applied — including Roe v. Wade and Planned Parenthood v. Casey — should be overruled. However, he does not take kindly to lower courts usurping his court’s prerogative of deciding whether and when to overrule its own cases.