Justice Jekyll and Mr. Hyde

My favorite horror movie is the original “Dr. Jekyll and Mr. Hyde.” We allknow the story, the kindly Dr. Jekyll who drinks a potion that unleashes the sinister part of his being, something we are meant to understand was always there. That’s the horror: the chemicals didn’t create the monster, they just opened the door and let him free.

Monster is perhaps an inappropriate term. While Mr. Hyde is a violent predator, the theme is that people are not consistent, coherent wholes. Humans are contradictions, with warring emotions, beliefs, and desires within the same mind and body. Expecting consistency is expecting too much.

And that brings me to the point of this column: Chief Justice John Roberts is very much a Dr. Jekyll and Mr. Hyde. He’s not a monster, and in many ways he is quite admirable because he really does try and follow his True North. But he doesn’t always remember where that point or pole is and flounders around looking for it. Sometimes I like the exploratory path he takes, sometimes I hate it. Recently he managed to enrage and delight me within a 24-hour period.

Roberts was the only conservative to vote in favor of striking down what his four conservative brethren felt to be a perfectly reasonable restriction on abortion. Five justices struck down a Louisiana law that would have required abortionists to have admitting privileges at nearby hospitals. The law was nearly identical to one from Texas that the court had struck down in 2016. In the earlier case, Roberts had written a dissent, finding that it was not too great a burden to require abortionists to have those admitting privileges. But in the latest decision, Roberts threw his support to the liberals because he felt required by precedent to vote with the liberals.

This seems reasonable. However, it is not. Roberts placed his desire to preserve the socalled integrity of the court as an institution above his previously stated position that there is nothing unconstitutional in requiring abortionists to have those important admitting privileges. In fact, those privileges could easily have been defended under the ruling in Planned Parenthood v. Casey, a nearly 30-year-old case that upheld a number of equally “burdensome” restrictions on a woman’s “right” to abortion (and yes, I will continue to use quotation marks around the word “right” because I wince at the fallacy that there is any legitimate, constitutionally grounded right to terminate a pregnancy).

Had Roberts not written a stinging dissent in the previous case where he actually made some very strong arguments in favor of those admitting privileges, I might not feel as strongly as I do about his vote with the liberal wing. But the fact that he did write that dissent, and continues to say that he thinks the abortion restrictions are legitimate, makes me recoil at what I view as putting form over substance. The form is that stone building and the institution that, far too often, hides cowardice and lack of imagination behind the word “precedent.” The substance is his beliefs as a judge and a lawyer.

I spent most of an afternoon cursing Roberts in the privacy of my office. And then, the next morning, I happened to see the pop-up on my computer screen, informing me that Roberts had just written the majority decision in another case, “Espinoza v. Montana,” which held that an educational funding program that provides funding to private schools cannot exclude religious institutions under some convoluted reading of the First Amendment. Roberts stated that “[A State] cannot disqualify some private schools solely because they are religious.”

To that I said, “Hallelujah.” And I apologized under my breath for the mean things that I’d said about Roberts the day before. The irony is that he could have just as easily written the type of scathing dissent that Justice Sonia Sotomayor wrote wailing about the separation of church and state, if Roberts really was concerned about his blessed “precedent.” That’s because there are enough prior decisions that would give him cover to find that providing money to religious schools is a violation of the Establishment Clause (I think those decisions are wrong, but they’re on the books).

That’s where this whole Jekyll and Hyde thing comes into play. It’s almost as if there is an angel and a devil warring for the soul of the chief justice, and on any given day he’s not sure which one he wants to listen to. It’s obvious that Roberts is a decent man, despite the scurrilous things that have been written about him by others (and shouted by me at my computer.) But he is so desperate to make it seem as if he really is that “umpire” he referenced at his confirmation hearings that he ends up being Casey at the Bat, who keeps striking out at the crucial moment.

I hope that when he finally settles down and realizes that the reputation of the institution is much less important than the integrity of the law itself, Roberts will reconcile the two sides of his complicated nature and choose to follow that better angel.