A vic­tory for the rule of law

The Supreme Court strikes down a Louisiana abor­tion law by ad­her­ing to prece­dent.

The Washington Post - - TUESDAY OPINION -

THE PEREN­NIAL chal­lenge for Amer­i­can democ­racy is fix­ing what is wrong with the sys­tem while pre­serv­ing what is right. To­day the trade-offs and ten­sions be­tween change and sta­bil­ity seem more acute than they have been for many years. As in the past, how­ever, the rule of law of­fers the best — the only — way for so­ci­ety to ne­go­ti­ate up­heaval peace­fully.

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.

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