Roberts may be centering the court
Chief Justice John Roberts broke with the Supreme Court’s other conservative justices and his own voting record on abortion to block a Louisiana law requiring abortion providers to have admitting privileges at a nearby hospital.
Roberts didn’t explain his decision late Thursday to join the court’s four liberal justices. But it was the clearest sign yet of the role Roberts intends to play as he guides a more conservative court with two new members appointed by President Donald Trump.
Since the retirement of Justice Anthony Kennedy last summer, Roberts has become the court’s new swing vote. He is, by most measures, a very conservative justice, but he seems determined to keep the court from moving too far right too fast and being perceived as just another forum for partisan politics in Washington.
“People need to know that we’re not doing politics. They need to know that we’re doing something different, that we’re applying the law,” Roberts said this week at Tennessee’s Belmont University.
Roberts’ vote in the Louisiana case was the fourth time in recent weeks that he has held the decisive vote on 5-4 outcomes that otherwise split the court’s conservative and liberal justices.
In late December, Roberts joined the liberals to keep Trump’s new asylum policy from taking effect. It would have prevented immigrants from making asylum claims if they didn’t enter the United States at a border crossing. Then, in January, Roberts voted with the Roberts
conservatives to allow restrictions on military service by transgender individuals to be put in place.
On Thursday, a halfhour before the court acted on the Louisiana law, Roberts voted with the conservatives to deny a Muslim death row inmate’s plea to have his imam with him for his execution in Alabama. The federal appeals court in Atlanta had ordered the execution halted, but the Supreme Court lifted the hold and allowed it to proceed.
The final vote was the order to keep Louisiana’s admitting-privileges law on hold while the court decides whether to add the case to its calendar for the term that begins in October. Louisiana’s law is strikingly similar to a Texas measure the justices struck down in 2016; in that case, Roberts was in dissent.
A district court judge had struck down the Louisiana law because he found it would have resulted in the closure of at least one, and perhaps two, of the state’s three abortion clinics, leaving the state with no more than two doctors who could meet the law’s requirements. But the federal appeals court in New Orleans upheld the law, concluding it was not certain that any clinic would have to close.
So much of what the court has done in recent weeks has been through emergency appeals, cases that call for temporary, yet-oftenrevealing votes. Unlike in cases that are argued and decided, the votes come with little explanation. When there is an opinion, it usually is a dissent.
Justice Brett Kavanaugh wrote the only dissent in the Louisiana case, arguing the court should have allowed the law to take effect because it is not clear that doctors would have been unable to obtain hospital privileges during a 45-day transition period.
After the ruling, some Democrats seized on Kavanaugh’s vote as proof that he was not following through on his assurances at his confirmation hearing to respect past Supreme Court decisions on abortion. But in his dissent, he said otherwise. Kavanaugh acknowledged that the court’s decision in the Texas case is the guiding precedent and seemed to suggest he might be willing to vote the other way if it turned out that hospitals were unwilling to afford the doctors admitting privileges.
The Louisiana clinics had argued that they would have been forced to stop performing abortions immediately and that clinics, once closed, are difficult to reopen.
Kavanaugh and Justice Neil Gorsuch, Trump’s two high-court appointees, are among six Trump-nominated judges who voted to let the law take effect, a sign that the president is carrying through on a campaign pledge to put abortion-rights opponents on the bench. The other four judges are members of the New Orleans-based 5th U.S. Circuit Court of Appeals, which had refused to put the law on hold.