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A day for lament at the Supreme Court

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Updated Tuesday, June 30

As predicted below, Chief Justice John “Flipper” Roberts has indeed, at least temporarily, gained his praise from The Washington Post.

On its news pages Tuesday morning, this statement: “In a remarkable stretch of decisions over the past two weeks, Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers. … It seems beyond dispute that Roberts is now the justice in the center, the role that retired Justice Anthony M. Kennedy once played.”

On the editorial page, the WaPo Editorial Board opined: “Credit goes to the four justices appointed by Democratic presidents and headed by Justice Stephen G. Breyer. … 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 … is not politics but statesmanship.”

From Monday, June 29

In Roberts’ fall, we sinned all.

I’m sad this afternoon, as are many Christians who hope for the Supreme Court to deliver us from one of our major societal sins. The high court in a 5-4 ruling, with Chief Justice John Roberts delivering the swing vote, invalidated a Louisiana law that would have slightly increased protection for unborn children.

Roberts developed his crucial concurrence by twisting the doctrine of stare decisis—stick with what the court previously decided. As Justice Clarence Thomas wrote in his spirited dissent, “The Court’s current formulation of the stare decisis standard does not comport with our judicial duty under Article III, which requires us to faithfully interpret the Constitution. … Stare decisis is not an inexorable command ... and this Court has recently overruled a number of poorly reasoned precedents that have proved themselves to be unworkable.”

Thomas was respectful of his chief, but let’s face it, Roberts had to pretzel-twist himself to maintain respect from The Washington Post. Ryan Anderson of the Heritage Foundation commented, “Unreal. Justice Roberts just voted with the four liberals on an abortion case because of stare decisis. … The precedent he’s upholding is from a case just four years ago, that he dissented on. If he thought the Court got it wrong four years ago, today was his chance to correct it.”

Justice Neil Gorsuch alluded to illogic in his dissent: “To arrive at today’s result, rules must be brushed aside and shortcuts taken. … We have lost our way.” He added that protecting abortion this time required a Bizarro World jurisprudence: “The legal standard the plurality applies when it comes to admitting privileges for abortion clinics turns out to be exactly the sort of all-things-considered balancing of benefits and burdens this Court has long rejected.”

What makes this decision particularly nasty is that the Louisiana law now invalidated was far from radical. As Gorsuch noted, “Act 620’s admitting privileges requirement for abortion providers tracks longstanding state laws governing physicians who perform relatively low-risk procedures like colonoscopies, Lasik eye surgeries, and steroid injections at ambulatory surgical centers.”

So Chief Justice Roberts became the new Flipper—replacing Anthony Kennedy in that depressing role—to save not the entire abortion stew but one morsel. Roberts has grabbed the role of Richard Rich in A Man for All Seasons, as Rich betrays a Catholic saint and receives his reward, appointment as attorney general of Wales. Sir Thomas More says, “Why Richard, it profits a man nothing to give his soul for the whole world. But for Wales?”

Roberts may have the opportunity to redeem himself when the court gets a case that could lead to an overturning of Roe v. Wade as a whole. Yet, based on what he did with one talent, it seems hardly likely that he will invest 10 wisely. Maybe we should go back not to a movie, nor even to the gospel, but to Genesis and Adam’s tragic fall in the Garden of Eden, which had consequences for all.

We have a system where one person may gain a position of huge responsibility. The president of the United States represents more than himself: He is the federal head of all Americans, and his decisions affect all. A chief justice is our federal head in attempting to bring justice for all. Sometimes he is only one vote among nine, but sometimes he is the decisive vote, and it’s especially important for him then to choose rightly.

Roberts chose wrongly, and all of us face the consequences of that choice. It’s a day for lament.

Marvin Olasky

Marvin is the former editor in chief of WORLD, having retired in January 2022, and former dean of World Journalism Institute. He joined WORLD in 1992 and has been a university professor and provost. He has written more than 20 books, including Reforming Journalism.



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