I’m a sucker for horror movies, but not the new ones filled with blood, gore and articulate zombies. My tastes trend toward the classics, and my favorite is the original “Dr. Jekyll and Mr. Hyde.”
We all know the story – the kindly Dr. Jekyll who drinks a potion which unleashes the sinister part of his being, something we are meant to understand was always there. That’s the horror: the chemicals didn’t create the monstrous Mr. Hyde, they just opened the door and let him free.
Chief Justice John Roberts is very much a Dr. Jekyll and Mr. Hyde, or a Justice Jekyll and Mr. Roberts, if you like. He’s not a monster, and in many ways he is quite an admirable man because he really does try and follow his True North. But the problem is he doesn’t always remember where that point or pole is, and flounders around looking for it. Sometimes I like the exploratory path he takes, sometimes I hate it. Last week, he managed to enrage and delight me within a 24-hour period.
Roberts was the only conservative to vote in favor of striking down what his four conservative brethren felt to be a perfectly reasonable restriction on abortion. In June Medical Services v. Russo, the majority of five justices struck down a Louisiana law that would have required abortionists to have admitting privileges at nearby hospitals. The law was nearly identical to one from Texas that the court had struck down in 2016.
In the earlier case, Roberts had written a dissent, finding that it was not too great a burden to require abortionists to have those admitting privileges, a requirement common in a variety of other circumstances. But in this new decision, Roberts threw his support to the liberals because, in his words “stare decisis instructs us to treat like cases alike.” In other words, Roberts felt that since the Louisiana case was almost identical to the Texas case, he was required by precedent to vote with the liberals.
This, of course, seems reasonable. However, it is not. Roberts placed his desire to preserve the so-called “integrity” of the court as an institution above his previously-stated position that there is nothing unconstitutional in requiring abortionists to have those important admitting privileges. In fact, those privileges could easily have been defended under the ruling in Planned Parenthood v. Casey, a nearly thirty year old case which upheld a number of equally “burdensome” restrictions on a woman’s “right” to abortion.
After the ruling, I spent much of the afternoon cursing Roberts in the privacy of my own office. But the next morning, Roberts wrote the majority decision in another case, “Espinoza v. Montana.” The court held that an educational funding program that provides funding to private schools cannot exclude religious institutions under some convoluted reading of the First Amendment. Roberts stated that “[A State] cannot disqualify some private schools solely because they are religious.”
To that I said, “Hallelujah.” And I apologized under my breath for the mean things that I’d said about Roberts just the day before. The irony is that he could have just as easily written the type of scathing dissent that Justice Sotomayor wrote wailing about the separation of church and state, if Roberts really was concerned about his blessed “precedent.” That’s because there are enough prior decisions that would give him cover to find that providing money to religious schools is a violation of the Establishment Clause (I think those decisions are wrong, but they’re on the books).
It’s almost as if there is a good angel and a bad devil warring for the soul of the chief justice, and on any given day he’s not sure which one he wants to listen to. It’s obvious that Roberts is a decent man, despite the scurrilous things that have been written about him by others. But he is so desperate to make it seem as if he really is that “umpire” he referenced at his confirmation hearings that he ends up being Casey at the Bat, who keeps striking out at the crucial moment.
I hope when he finally settles down and realizes that the reputation of the institution is much less important than the integrity of the law itself, Roberts will reconcile the two sides of his complicated nature and choose to follow that better angel.
Copyright 2020 Christine Flowers. Flowers is an attorney and a columnist for the Delaware County Daily Times, and can be reached at [email protected]