Symposium: June Medical and the many faces of judicial discretion

Jane Schacter is the William Nelson Cromwell professor of law at Stanford Law School. She signed an amicus brief in support of the petitioners in June Medical Services v. Russo.

The headline from the 5-4 decision in June Medical Services v. Russo striking down Louisiana’s abortion restriction is unquestionably the vote of Chief Justice John Roberts. He determined the outcome. While he may have previewed his position a year ago when he voted to stay the ruling from the U.S. Court of Appeals for the 5th Circuit that upheld the law, he had never before voted to strike down a restriction on abortion, so Monday’s outcome was hardly inevitable.

The chief justice’s vote is significant both for this case and for the idea of stability in constitutional law. The decision is consequential and, by my lights, a welcome intervention in the arena of abortion. Much less clear is what it might portend for future legal developments in this area. In this commentary, I would like to focus on the stated rationale in the chief’s concurrence and explore what it might mean, going forward, for the constitutionally protected right to choose. My conclusions are two: First, although Roberts frames his opinion in terms of stare decisis and judicial restraint, there are many reasons for skepticism about the prospects for such restraint in the realm of abortion rights. Second, supporters of abortion rights won a significant victory in June Medical, but the Roberts concurrence by no means closes the doors to significant future restrictions on access to abortion.

The Louisiana admitting privileges requirement struck down in June Medical was basically a carbon copy of the requirement imposed by Texas and struck down in Whole Woman’s Health v. Hellerstedt in 2016. Justice Stephen Breyer’s majority opinion in Whole Woman’s Health held that the Texas law constituted an “undue burden” on access to abortion in violation of Planned Parenthood v. Casey.

The similarity of the Louisiana and Texas laws led Roberts to place central emphasis on stare decisis in his June Medical concurrence. In doing so, he emphatically associated stare decisis with judicial restraint. He quoted the Federalist Papers for the idea that “[a]dherence to precedent is necessary to ‘avoid an arbitrary discretion in the courts,’” and Justice Robert Jackson for the idea that such adherence “distinguishes the judicial ‘method and philosophy from those of the political and legislative process.’” This emphasis on judicial modesty is a familiar rhetorical signature for Roberts. It traces back to his confirmation hearing, where he famously analogized judges to mere “umpires” tasked with calling “balls and strikes.” And it has shown up in many of his most significant opinions, such as King v. Burwell, rejecting (for the second time) efforts to gut the Affordable Care Act and emphasizing that “[i]n a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—‘to say what the law is’” (quoting Marbury v. Madison). Likewise, his blistering dissent in Obergefell v. Hodges hammered this theme, repeatedly analogizing the ruling in favor of marriage equality to the discredited Lochner doctrine, calling the majority opinion an “act of will, not legal judgment,” and provocatively asking: “Just who do we think we are?”

While judicial discretion is a familiar bogeyman for the chief justice, matters are not nearly as simple as his opinions often suggest. June Medical vividly shows why this is true.

For starters, as some of the dissenters point out, Roberts’ appeal to stare decisis is an odd one because of how he treats Whole Woman’s Health. Even while extolling the singular importance of adhering to precedent, the chief justice rejects a key part of that ruling. In Whole Woman’s Health, Breyer’s decision for the majority emphasized that, in order to decide whether a burden on abortion rights is “undue” under Casey, the benefits of the law must be balanced against its burdens. Breyer saw this as a crucial part of the analysis, and he emphasized that once again in his June Medical plurality opinion. It is thus striking that Roberts expressly rejected the idea that Casey requires this balancing and refused to follow that key  aspect of Whole Woman’s Health. Why does Roberts say that he rejects the weighing of burdens and benefits? You guessed it: because balancing tests give judges too much power, asking courts to “assign weight” to “imponderable values” and to “act as legislators, not judges.” Thus, while hanging his hat on stare decisis, Roberts rather conspicuously picks and chooses what parts of the operative precedent demand fidelity.

Moreover, the doctrine of stare decisis often falls short of the kind of judicial restraint that Roberts sets as the test of legitimacy. The doctrine is full of escape hatches and decision points. As every first-year law student learns, precedents can always be distinguished through common law reasoning that is itself built on an edifice of judicial discretion. Moreover, Roberts’ opinion is salted with principles that allow judges plenty of room to roam. For example, the opinion recognizes that stare decisis is not absolute and enumerates factors (such as changing factual and legal circumstances) that allow courts to decline to follow precedent. He also notes that stare decisis need not apply to a decision that “itself departed from the cases that came before it.” Perhaps most significantly, he pointedly notes that “[n]either party has asked us to reassess the constitutional validity” of Casey’s undue burden test, suggesting that Casey and what remains of Roe v. Wade might still be reconsidered in a future case if—as seems likely—a party asks the court to do so.

Just as stare decisis often falls short of Roberts’ stated ideal of judicial restraint, so do other principles touched on in his opinion. It is notable that, in rejecting the balancing test that Breyer applied in Whole Woman’s Health and June Medical, the chief justice seems to suggest that Casey’s undue burden test can otherwise be applied in straightforward fashion, free from judicial subjectivity. But Casey’s very notion of a burden as “undue” calls upon the exercise of judicial discretion, as does the case’s definition of an undue burden as a restriction that has “the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” There is nothing precise or determinate about this test, which empowers judges in the very way that Roberts sets up as the problem.

Indeed, as is by no means novel in the realm of constitutional law, there are countless other opportunities for value-laden judicial decision-making in ruling on abortion restrictions. The multiple opinions in June Medical offer a handy roadmap for anti-abortion litigators. To name a few: Do abortion providers have standing to assert the constitutional rights of their patients? That they do has seemed settled for decades, but several justices on the court want to revisit that. Relatedly, are existing restrictions on third party standing grounded in Article III of the Constitution, or merely “prudential rules” that can more easily be ignored by courts? That, too, is disputed among various justices. Either way, the law of standing is famously elastic and gives judges ample room to re-shape constitutional law by regulating who may sue. The justices also sparred over how much deference should be given to trial courts’ factual findings and whether to treat certain issues as matters of fact (where deference to lower courts is greater) or matters of law (where appellate courts have more free rein). These matters offer another route to empowering the justices.

The list goes on, but you get the idea. The pristine world in which principles are wholly neutral, judicial discretion can be severely limited, and courts can, uncontroversially, stay in what Justice Neil Gorsuch calls their “constitutionally assigned lane” is a fictional world, and not one that either the chief justice or any of the justices convincingly inhabits.

What does this mean for abortion rights going forward? The victory in June Medical is unquestionably a significant one, but it does not end the debate. It is noteworthy that the formulation of undue burden recited by Roberts is unclear, with some of his language at least leaving doors open to more freewheeling regulation of abortion. Especially menacing for supporters of abortion rights is the citation in Justice Samuel Alito’s dissent to Williamson v. Lee Optical. This is a well-known 1955 precedent about regulation of eyeglass prescriptions that permits state regulation based on any hypothetical rationale a state “might” have had in mind, even if there is no indication that the state ever thought about that policy and, instead, a lawyer for the state conjures it for the first time from whole cloth in litigation. Lee Optical review is widely understood to be toothless, so if Alito’s version of “undue burden” is ever accepted, it will mean that Casey has been hollowed out without ever being overruled. The judicial discretion to refashion the test in that way in the future would not be as conspicuous as overruling a recent precedent, but it would be utterly devastating to abortion rights.