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In this image from video, President Pro Tempore of the Senate Sen. Chuck Grassley, R-Iowa., swears in Supreme Court Chief Justice John Roberts as the presiding officer for the impeachment trial of President Donald Trump in the Senate at the U.S. Capitol in Washington, Thursday, Jan. 16, 2020. (Senate Television via AP) No one should be surprised by Chief Justice John Roberts’ decision today to join in the judgment of the Court, but not the opinion of Justice Breyer, invalidating the Louisiana statute requiring abortion providers to have admitting privileges at a nearby hospital.

Yes, CJ Roberts voted in the minority to invalidate a nearly identical law four years ago in the case Whole Women’s Health v. Hellerstedt , a 5-3 decision striking down a Texas statute — Justice Scalia had passed away before the case was decided, but had not yet been replaced on the Court. In his opinion today CJ Roberts stated that he believes the Hellerstedt case was wrongly decided as he said then, and he stands by that vote.

The difference today is that Justice Gorsuch has filled the seat that belonged to the late-Justice Scalia, and Justice Kavannaugh has the seat that belonged to now retired-Justice Kennedy, who voted in the majority in Hellerstedt . Had Chief Justice Roberts been consistent in his view on the merits of the Louisiana law today, the outcome would have been 5-4 in favor of upholding the law and overruling the decision from four years ago in Hellerstedt .

CJ Roberts wrote a 16 page “Concurring” opinion for today’s decision that deals extensively with the doctrine of stare decisis — which means that the Court should respect the previous decisions of the Court and overrule them only in only very limited circumstances.

What this means is that when the Court voted in […]


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