On the Feb. 16 episode of Slate’s Supreme Court podcast Amicus, Dahlia Lithwick spoke with Dean Risa Goluboff and Vice Dean Leslie Kendrick of the University of Virginia School of Law about Chief Justice John Robert’s Feb. 7 decision to join the liberal justices in granting a temporary stay in June Medical Services v. Gee. The case concerned a Louisiana requirement that abortion providers gain admitting privileges in a nearby hospital—a tactic deployed to undermine access to abortion. A transcript of their discussion, which has been condensed and edited for clarity, is below.
Dahlia Lithwick: Let’s turn to the Supreme Court. They handed down a pair of very dramatic stay orders a week ago, one in June Medical Services, which is a case related to abortion, and one in Dunn v. Ray, a case about an Alabama execution. I thought maybe we could start with June, which involved a Louisiana admitting privileges requirement. It was functionally identical to the admitting privileges requirement that the court struck down in 2016 in Whole Woman’s Health. Had it gone into effect, it would’ve shuttered probably a third of the clinics in the state. The lower court enjoined the thing; the 5th Circuit allowed it to go into effect. It would’ve gone into effect, but for Chief Justice John Roberts running to the rescue and joining with the court’s liberal justices last Thursday night to put the stay back into effect. A lot of commentary in the weeks since suggests that this makes John Roberts a moderate on abortion rights. Which of you is laughing because you’re going to have to answer? Risa?
Risa Goluboff: OK, that would be me. There’s been a lot of commentary about what this means, and what does it mean for Chief Justice Roberts, what does it mean for the court, what does it mean for abortion doctrine, and I think these are continuations of the conversation that began when Justice Kennedy retired and John Roberts was in the center of the court if you lined everybody up ideologically. The question was “What role would he play?” because his center is obviously further to the conservative side than Justice Kennedy’s was in a number of issues, and people were wondering, would he join with the liberals, and under what circumstances?
I actually think this is the kind of circumstance under which he would play the role that he did play in the stay. I’m not sure that it says anything about his views on abortion or what he’ll do if and when the court takes the case and actually decides it on the merits. I think there are two things going on, neither of which, I think, has a whole lot to do with abortion, though it might end up having a little bit to do with abortion.
The first is … this was a 5th Circuit opinion really, truly thumbing its nose at the court in a case that the court just decided, Whole Woman’s Health, and, I think, that’s not something you can countenance as a chief justice of the United States. The second thing is … and I liken this to what he did in Parents Involved v. Seattle School District in 2007. Right after he became the chief justice, he had an opportunity to overrule precedent in an affirmative action case that was fairly recent, and he chose not to. He narrowed and he distinguished, but he didn’t do it, and I think he knows that the eyes of the world are on him and are asking the question, “What will he do? Will this be a political court? Will there be five conservative justices who will rule conservatively every time?”
I think he wants to resist that, and he wants to make a claim for the legitimacy and neutrality of the court, and I think this stay gave him an opportunity to do that. I don’t know that it tells us anything about what he thinks about abortion or anything about what he’ll do if and when the case comes to the court in full argument, but I think this was an opportunity for him to uphold a recent precedent of the court, which was in keeping with long-standing—going back to Roe v. Wade—a long-standing precedent of the court and to suggest that there is some level of neutrality in the court.
Listen to the rest of the episode, which covers issues of race in government, gender in the law, and religion and the court: