John Roberts outsmarts himself yet again

I’m not going to buck that trend now, other than to comment on the odd result of Chief Justice Roberts’s having joined the liberals’ invalidation of the Louisiana law while joining them in the judgment alone on stare decisis grounds. That is, Roberts maintained his disagreement with the holding of Whole Women’s Health, and in a vacuum would’ve upheld the law now, but nevertheless voted against the state in order to respect that earlier precedent—which, again, he considers to be erroneous.

But, setting aside the constitutional merits of the Louisiana law and how close it is to the Texas one that the Court invalidated four years ago, Chief Justice Roberts’s capricious application of stare decisis is startling. After all, stare decisis didn’t stop him from overturning precedent in Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Knick v. Township of Scott (2019), cases in which the precedent was much older and more entrenched, but a very recent close decision in which he dissented apparently carries more weight. There are probably other examples, but those three come immediately to mind.

Mind you, I think Roberts was correct in all those earlier cases, and his concurring exposition of stare decisis in Citizens United was well done. But that doesn’t jibe with what he wrote today or, for that matter, with his vote in Gonzales v. Carhart (2007), which upheld the federal ban on partial‐​birth abortion a mere seven years after the Court invalidated a similar Nebraska ban in Stenberg v. Carhart (2000).