Insanity, as the famous — and perhaps apocryphal — Einstein aphorism goes, is doing the same thing over and over again and expecting different results.
When, if ever, will the pro-life and "legal conservative" movements get the message?
On Thursday night, in the case of June Medical Services v. Gee, U.S. Supreme Court Chief Justice John G. Roberts — who already had a more liberal voting record in the Court's 2017-2018 term than did then-infamously mercurial swing vote, Justice Anthony Kennedy — sided with the Court's liberal bloc in issuing an injunction that temporarily blocked Louisiana's enforcement of a common-sense law that would require abortionists to have hospital admitting privileges within 30 miles of an abortion clinic. The Supreme Court's injunction precludes Louisiana's enforcement of the law until the Court decides whether or not to grant a writ of certiorari and thereby take up the case for full review. Last September, a divided panel of the U.S. Court of Appeals for the Fifth Circuit upheld Louisiana's law against constitutional challenge.
I have little to add to Ed Whelan's straightforward analysis as to why the Court should have refused to issue a stay, in the first instance. As Whelan notes, Supreme Court Justices are obviously not bound by their own decisions — and so, for purposes of deciding on a stay, they should not have viewed as binding the erroneously decided 2016 Supreme Court case of Whole Women's Health v. Hellerstedt, which was the last major abortion case to reach the Court and which served as the focal point of the Fifth Circuit panel's underlying substantive analysis. Indeed, Roberts was even a dissenter in Whole Women's Health! As Whelan noted: "If Justice Gorsuch and Justice Kavanaugh reach the same position [as Roberts and the Whole Women's Health dissenters] — as they should — that would mean that five justices regard [Whole Women's Health] as unsound and unworthy of being extended to another state’s law."
Well, so much for that.
Whelan's analysis this morning of Roberts' vote is frankly too pollyannaish. The Court has a three-part test for issuing such injunctions: (1) likelihood of granting a writ of certiorari to hear the case, (2) a "significant possibility" that the lower court's decision would be reversed, and (3) a likelihood of "irreparable harm" if the decision is not stayed. Four votes are needed to issue a writ of certiorari, and it is true that Roberts may have had reason to believe that his four liberal colleages intend to vote to issue the writ here. But prongs (2) and (3) are not at all in that test's favor; indeed, the foregoing analysis about the Supreme Court not having to treat Whole Women's Health as binding, in conjunction with the current ideological makeup of the Court, ought to single-handedly foreclose any "significant possibility" of reversing the Fifth Circuit and thereby preclude an injunction solely on prong (2) grounds.
Contra Whelan, I am far too cynical about the Chief Justice's motives and intuitions, at this point, to provide him such deference. And, in any event, at this juncture, such technicalities are manifestly besides the point.
The medium-size point, instead, is that Chief Justice Roberts has once again shown his true colors — that of an "institutionalist" committed to preserving the purported "integrity" of the U.S. Supreme Court, as an institution, against those who would opportunistically excoriate it as being too political or partisan.
The large-size point — and this is the true takeaway — is that the pro-life and "legal conservative" movements have yet again been let down in their decades-long quest to overturn Roe and its murderous progeny via essentially nothing other than getting
committed alleged originalists onto the federal judiciary. As I tweeted last night:
For decades, the Federalist Society and the pro-life movement have tried their darndest to get "our guys" on the Supreme Court, in order to overturn Roe. Well, guess what? It isn't working. Period. As I wrote two and a half years ago, after Whole Women's Health v. Hellerstedt:
...as the years mount and we get increasingly bad case law from philosopher-king [Justice] Kennedy and his black-robed acolytes, stare decisis norms that caution against overturning precedent become more enshrined. This poses a particularly acute problem for originalists, who do not even all agree on whether to completely eschew stare decisis in constitutional interpretation (the Justice Thomas position) or to abide by at least some version of it (which Justice Scalia preached). In Whole Women’s Health, arguably the most important abortion decision since 1992’s equally terrible Planned Parenthood v. Casey, we saw this tension play out: Justice Alito and Chief Justice Roberts both refused to sign onto Justice Thomas’s more acerbic dissent, and thus once again avoided weighing in on the underlying legality of the abortion right fabricated by Republican-nominated Harry Blackmun in 1973’s Roe v. Wade.
This should be deeply troubling. Justice Alito, who after Thomas and Scalia probably falls alongside Rehnquist as one of the most conservative justices of the post-World War II era...ha[s] still not officially gone on record as saying Roe v. Wade was wrongly decided, in [his] decade-plus of service on the Court. As a pro-life friend messaged yesterday, it is "pretty devastating…what even [these] conservative justices have internalized regarding abortion." ...
How much longer are we willing to wait this out? How many more unborn children must die before we change course?
Of course, this intrinsic fetishization of and sycophancy toward the judiciary from the pro-life and "legal conservative" movements also has the paradoxical effect of grotesquely exalting judges and thereby metastasizing our crisis of judicial supremacy — an anti-republican distortion of our tripartite separation of powers construct that I have written about numerous times for The Daily Wire. Indeed, it is ultimately impossible to disentangle the failures of the pro-life movement from the judicial supremacy quagmire. At this point, the fair-minded observer must concede that to be notionally "pro-life" while paying homage to judicial supremacy is an intellectual contradiction in terms.
Where do we go from here?
I plan to revisit this in future posts. Specifically, I hope to depict what a legal strategy would look like for a state legislature to explicitly defy Roe v. Wade and Planned Parenthood v. Casey in its legislation, and thereby force the Executive Branch of the federal government to determine whether it is worth expending political and institutional capital to send in federal law enforcement to execute decades-old, erroneously decided Supeme Court decisions that have exterminated countless unborn souls. No, this is not John C. Calhoun-style "nullification"; the Supremacy Clause of Art. VI of the Constitution refers to "[t]his Constitution, and the laws of the United States" — and idiosyncratic legal adjudications, which bind solely the litigants to a particular lawsuit, do not count.
In such a hypothetical scenario of a pro-life state legislature sticking its proverbial middle fingers at Roe, Trump should not enforce the Supreme Court ruling. Indeed, he should not even think of Roe as the "law of the land," as I wrote two years ago:
In standing with the Founders, Lincoln, and the unborn alike by pledging to refuse to enforce Roe and its progeny as binding legal precedent — and thereby opposing the fallacious doctrine of judicial supremacy — Trump...would find [himself], as the Left might phrase it, on “the right side of history.”
The Left would howl "constitutional crisis." Let them do it. But as the prominent constitutional law scholar Michael Stokes Paulsen has argued, the Civil War altercation itself can be viewed as a form of constitutional interpretation. Surely, a prospective showdown between a defiantly pro-life state legislature and an intellectually riven federal Department of Justice would be no different.
I will revisit this topic soon. We must end judge-worship — and the concomitant crisis of judicial supremacy — in America.