And so it is cause for optimism that the Supreme Court has voted to strike down a law in Louisiana that would have imposed strict but medically unwarranted regulations on that state’s abortion providers. This is a victory for the right to choose and for women who rely on it. Equally, if not more important, however, it is a triumph for adherence to precedent, without which the judicial process degenerates into a raw exercise of power. The Louisiana law was, for all intents and purposes, identical to a Texas law the Supreme Court had struck down just four years ago. For a court newly stocked with two appointees of President Trump to have overturned such a fresh and clearly applicable precedent, on the most controversial of issues, would have implied that judicial personnel matters more than judicial precedent, undermining public confidence in the rule of law just when the country needs it most.
Credit goes to the four justices appointed by Democratic presidents and headed by Justice Stephen G. Breyer, who, unsurprisingly but persuasively, articulated the legal and factual similarities between the Texas and Louisiana situations. Less predictable but even more laudable was the position of Chief Justice John G. Roberts Jr. Rather than seize the chance presented by a shift in the court’s personnel to advance the anti-abortion cause with which he obviously sympathizes, he supplied a majority-making vote to strike down the Louisiana law. This adherence to precedent despite personal disagreement — he had previously voted, in dissent, to uphold the Texas abortion law — is all the more remarkable given that the chief justice can expect another round of condemnation from Republicans already furious with him for thwarting their preferred outcomes in previous cases.
Really, the vote should have been 9-to-0. No doubt his critics on the right will charge that Chief Justice Roberts is the one playing politics, in the sense of taking public perception of the judiciary, and its legitimacy, into account. At times, however, the Supreme Court not only can but should embrace that sort of political awareness — not in the spirit of partisanship but in the spirit of institutional legitimacy. In his opinion, the chief justice clearly implied that this was his objective, as he pointedly cited Sir William Blackstone, the great English jurist, on the need “to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.”
This is not politics but statesmanship. What’s more, it’s a brand of conservatism consistent with that political philosophy’s best traditions, which do not deny the need for change but seek to channel it through stabilizing institutions. The inability of many Republicans to appreciate such concerns simply confirms the degree to which they have sold out their cautious old principles in favor of radical new ones.