Mark Roman | July 8, 2020 | news
Observers of the U.S. Supreme Court have had plenty of things to talk about this term. Mainstream media have described recent decisions in favor of abortion rights, the DACA program, and LGBTQ rights as surprising, given the Court’s current conservative majority.
This kind of liberal/conservative lens oversimplifies what judges do. Judges are not political—at least not when they have the robes on. They do not simply vote the party line in response to each issue before them. In fact, many put their personal preferences aside when deciding whether to vote for or against certain outcomes.
Judges have unglamorous but important concerns that affect their decisions. One of the most important ones is the rule of “stare decisis,” a doctrine that states judges should follow precedent rather than their own whims. This rule has multiple benefits: It makes outcomes more predictable, prevents courts from blowing in the wind with political preferences, and results in litigants being treated uniformly. This concern for fidelity is entrenched in our law and plays a larger role in court decisions than most people realize.
Chief Justice John Roberts seems particularly concerned with adherence to precedent. His vote last week to invalidate a strict Louisiana abortion law was based almost entirely on this ideal. In his decision, Roberts pointed out the Court had nullified a virtually identical law from Texas just 4 years ago. He could not justify reaching the opposite conclusion just a few years later.
In fact, Robert seems to have a larger unspoken concern: the credibility of the Supreme Court as an institution. At a time when our legislative and executive branches can be chaotic, Roberts has taken pains to make the court appear apolitical, stable, and consistent. He seems to have little appetite for overruling precedent or making decisions outside the mainstream of American public opinion.
Viewed in this way, Roberts’ decision in favor of abortion rights makes more sense. The right to an abortion, justifiably or wrongly, has existed for almost 50 years. Roberts was probably concerned about the credibility of the court when he considered whether to depart from a law that has stood for so long.
People may think this is some kind of score-settling between Roberts and President Trump, but it most likely was not. Instead, Roberts probably didn’t want the Court to seem like it was just zigging and zagging on a hot-button issue. He seems to believe the court should appear as a neutral and non-political institution, where change comes slowly if at all. Roberts is not a bomb-thrower like the colorful late Justice Antonin Scalia; instead, he is a careful incrementalism.
This may also be the same reason Roberts refused to dismantle the Affordable Care Act, refused to allow the current administration to discontinue DACA without first performing a careful review, and refused to accept the argument that civil rights law did not apply to LGBTQ people. When read carefully, his decisions in those cases were driven respectively by concern for stability, well-understood standards for reviewing the actions of government agencies, and adherence to the words used by Congress in the laws it passed.
This is not glamorous stuff. However, Roberts clearly considers it important to the institutional prestige of the court, which must appear above the fray of day-to-day politics.
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