The strategic discretion of John Roberts

“Derangement syndromes” are proliferating, with three variants linked to Presidents George W. Bush, Barack Obama and Donald Trump: “Bush lied, people died,” “Obama was born in Kenya,” and “Trump is a Putin mole.”

Now comes the “Roberts derangement syndrome,” which was seeded among conservatives after the 2010 decision that upheld most of Obamacare and is flowering in the wake of Chief Justice John Roberts joining with four liberal colleagues in a Feb. 7 ruling related to abortion.

When he helped save the Affordable Care Act, Roberts was accused of ignoring constitutional principles in order to preserve broad public support for the Supreme Court. I believed that instead, he was following long-standing court doctrine, which cautions against overturning a law on constitutional grounds when there is any means of saving it — laws having cleared the Constitution’s high hurdles of bicameralism and presidential consent.

Some Roberts critics were not content to blast away at just one decision; they developed a theory of “Roberts is the new Justice David Souter” — that the chief justice is a secret liberal, confirmed by deceit and contrary to the expectation of the president who nominated him.

This absurdity overlooks many decisions in which Roberts voted with the originalist majority, most famously in Citizens United v. FEC, which upheld the First Amendment rights of all corporations, and Burwell v. Hobby Lobby, which upheld the intent of the Religious Freedom Restoration Act’s protections of the free exercise of religion.

But derangement syndromes, well, derange. The most recent bout of Roberts derangement syndrome occurred this month — though in fact he may be acting deliberately and strategically in a way that will delight his detractors.

The chief justice joined the court’s four liberals in June Medical Services v. Gee, issuing a stay of a Louisiana law recently upheld by the U.S. Court of Appeals for the 5th Circuit in a 2-to-1 decision. The law would oblige abortion providers to secure admitting privileges at a local hospital. In 2016, in Whole Woman’s Health v. Hellerstedt (WWH), the Supreme Court struck down as unconstitutional a Texas law similar to the Louisiana law — abortion rights advocates say the Texas and Louisiana laws are identical — and the chief justice was among the three dissenters, along with Justices Samuel Alito and Clarence Thomas.

Two weeks ago, the four “conservatives” on the court opposed a stay of the Louisiana law: Justices Alito, Thomas, Neil Gorsuch and Brett Kavanaugh. When Roberts did not join them, the denunciations came from the informed and the ignorant. Those among the deranged took the derision of the chief justice to unprecedented levels on Twitter and elsewhere.

All of this denunciation and criticism is at best premature. It will, I suspect, ultimately prove to be embarrassing to its purveyors.

Why might a conservative, “originalist” justice vote for a stay of the Louisiana law? Consider what may happen next:

The Supreme Court can choose to grant certiorari in June Medical Services and then agree that the Louisiana law does not conflict with WWH and uphold the circuit court’s decision. Or a Supreme Court majority could in fact overrule WWH upon full consideration of the record. Indeed, the court might (and I pray does) go even further than that and reverse Roe v. Wade and Planned Parenthood v. Casey.

To have appeared (even by inference) to have done this last thing by denying a stay would have been derided as a “sneak attack” on Roe. The court depends on the public’s enduring respect to maintain its standing, especially on the most controversial cases. Shortcuts to long-sought and fervently desired outcomes are no way to preserve that standing. Full briefing and argument, both before the court and in the public arena, is the preferred path. And it isn’t a close call.

If, as I suspect, the court eventually takes and decides the Louisiana case on the merits, it will be fully briefed and argued. We will as a people then all review, along with the court, the rules of Planned Parenthood v. Casey, which replaced Roe v. Wade as the true crucial case on reproductive rights, and indeed we could see it and Roe both reversed as they deserve to be. The states would thus be returned to the position they enjoyed in 1972 as sovereigns over the regulation of abortion. New York’s new and radical abortion law would not be disturbed by the reversal of Casey and Roe, nor would California’s state constitutional right to abortions, but Louisiana and Texas and every state would again be in charge of their laws on this deeply divisive issue.

Given Roberts’ concurrence in Citizens United, where he carefully outlined the circumstances in which concerns for stare decisis should not hold the court back from tossing out bad precedents, I think he will vote to uphold the Louisiana law he voted to stay, and to overrule WWH, and may join his four “conservative” colleagues in going much further than that, to the overturning of Casey and Roe.

A final decision would probably not come before June of 2020, and if any changes in the court’s membership occurred between now and then, it might be delayed until 2021. The decision will not be a rushed, “dead of night” maneuver.

In that case, the chief justice will have voted to stay not just a Louisiana law but also a premature political explosion and its collateral damage on an already frayed public square. If this is the result, Roberts’ discretion two weeks ago will be repaid in full, though I doubt many of his critics will take time to correct their own records.

Roberts was a conservative when appointed by Bush in 2005. He has remained one.

— Hugh Hewitt is a conservative radio talk show host and is a special contributor to The Washington Post.

CREDIT: HUGH HEWITT