Abortion case shows Roberts firmly at high court’s center
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.
Justice 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 he 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, Justice 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,” he said during an appearance this week at Tennessee’s Belmont University.
Justice 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, Justice Roberts joined the liberals to keep Mr. 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, he voted with the conservatives to allow restrictions on military service by transgender individuals to be put in place.
On Thursday, a half hour before the court acted on the Louisiana law, Justice 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.
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, and left 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 often revealing, 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 that 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 Justice 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. Justice 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.