During the confirmation proceedings for Chief John Roberts Jr. in September of 2005, the common question looming over his hearings was whether or not he would uphold the abortion precedents of the Supreme Court. In 2019, Roberts is still being asked that question, as last week it came to light again during the deliberation over a Louisiana bill that would have severely restricted abortion access.
Although he offered no further explanation, Roberts sided with the more liberal Supreme Court justices, by voting to block the anti-abortion Louisiana law. It was a 5-4 decision, with Roberts as the deciding vote. There has been heavy speculation over the past week that the intent behind his vote was to avoid signaling that he was prepared to overturn the precedent created with the blockage of a 2016 bill from Texas, which had stark similarities to the 2019 Louisiana legislation.
The Texas legislation initially pushed for mandating doctors performing abortions to have admitting privileges at surrounding hospitals, which the court ruled was medically unnecessary due to abortions generally being a low-risk procedure. The courts barred the recipient’s access to their constitutional right to elect to have an abortion. The vote was 5-3, with Justice Roberts on the dissenting side.
The court’s decision on this year’s legislation, however, is only three sentences long, and the case will likely return to the court when that time has ended in the next term. At that point, there is no way to be sure that Roberts will again vote to block the passage of the legislation; the early February decision is not a guarantee of what he will decide to do. There is a clear set of obstacles that Roberts is facing: his inclination to vote conservatively results from the fact that he has played a role in the conservative legal frame. Yet, he also identifies with institutionalism, and likely feels obligated to uphold the legitimacy of the Supreme Court, which would lead him to cast less controversial votes.
If Roberts decides to lean more towards the latter, that would indicate that rights regarding abortion, LGBT rights and affirmative action may not be in immediate danger. However, due to the fact that Roberts’ votes are now key, a role that previously belonged to the now-retired Justice Anthony Kennedy who was more liberal, these precedents may be more at stake.
In his 2005 confirmation hearings, Roberts told Senator Arlen Specter that the court should be wary of overturning precedents, adding that doing so is a “jolt to the legal system when you overrule a precedent…precedent plays an important role in promoting stability and evenhandedness.”
Specter, a moderate conservative who is in favor of abortion rights, was reportedly content with this answer, as he felt that it displayed Roberts’ unlikeliness to trigger a, “movement against stability.”
Roberts also was noted as upholding the legal doctrine of “stare decisis,” which refers to “standing by things decided.” This explains his vote on this month’s decision, in which he elected to respect precedents of former cases, yet does not guarantee a similar reaction when the case returns to the court.