New APPS

UPDATE: With a note on the Roberts concurrence at the end

Justice Roberts sided with the Court's liberals today in a (somewhat surprising, and really important) 5-4 decision by Justice Breyer striking down a Texas abortion law nearly identical to one the Court struck down in 2016.  Justice Roberts is not a fan of abortion.  But he is a fan of the law!  Today, he basically joined in a smackdown of the ultra-conservative 5^th Circuit, which forgot that it was an appellate court, and not a trial court.  Justice Breyer writes:

“The Court of Appeals agreed with the District Court’s interpretation of the standards we have said apply to regulations  on  abortion.    It  thought,  however,  that  the  District  Court  was  mistaken  on  the  facts.    We  disagree.   We  have  examined the extensive record carefully and conclude that it supports the District Court’s findings of fact.  Those findings mirror those made in Whole Woman’s Health [the 2016 case] in every relevant  respect  and  require  the  same  result.  We  consequently hold that the Louisiana statute is unconstitutional.” (op. slip, 3)

Yes, but before we get there, let’s remember that the job of the Court of Appeals is not actually to disagree about facts when it doesn’t like a precedent.  Breyer begins with a review session on what Court is supposed to do what:

“We start from the premise that a district court’s findings of fact, “whether based on oral or other evidence, must not be  set  aside  unless  clearly  erroneous,  and  the  reviewing court must give due regard to the trial court’s opportunity to  judge  the  witnesses’  credibility.”    Fed.  Rule  Civ.  Proc.  52(a)(6).  In “ ‘applying [this] standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual  issues  de  novo.’ ”  Anderson  v.  Bessemer  City,  470  U. S. 564, 573 (1985) (quoting Zenith Radio Corp. v. Hazel-tine Research, Inc., 395 U. S. 100, 123 (1969)).  Where “the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson, 470 U. S., at 573–574. “A finding that is  ‘plausible’  in  light  of  the  full  record—even  if  another  is equally  or  more  so—must  govern.”  Cooper  v.  Harris,  581  U. S. ___, ___ (2017) (slip op., at 4)” (17-18).

So the 5^th Circuit’s foray into factfinding was unjustified unless the District Court was clearly in error in its assessment of facts.  Breyer reviews them and concludes it was not.

But that was not all the chicanery at work!  The other violation of legal procedure was by Louisiana, which mid-process decided to argue that doctors could not argue the case on behalf of their patients, who should have to argue it for themselves.  But that was not their initial position; “the State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question” (12).  That dog don’t hunt: “the State’s unmistakable concession of standing as part of  its  effort  to  obtain  a  quick  decision  from  the  District  Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here.” (13).  Breyer goes on to argue that the doctors can represent their patients, but the state’s inattention to basic principles of legal argument means that’s just icing on the cake.

There’s a lot here, and I haven’t even looked at the multiple dissents.  But one moral of the story over the last couple of weeks is quite clear: if you want Justice Roberts’ vote, you should at least act like you respect the law.  This is why Trump keeps losing.  Title VII means what it says it does.  You can repeal DACA, but not unless you follow the rules.  And so on.

In case anyone doubted this, Roberts’ concurrence basically tells plaintiffs how to win his vote.  In it, Roberts grudgingly and repeatedly refers to stare decisis, the principle that courts shouldn’t just go back and overrule earlier precedents.  He defines the doctrine as “like cases should be decided alike,” and explains that the law under consideration was identical to the one overturned in Whole Woman's Health.  Of course the flip side to that is the subtext: pass a non-identical law, and you can win his vote.  He went out of his way to say that he would look at whether a law posed an undue burden (and nothing else, rejecting the balancing test in the 2016 case) and reiterated that he thought the 2016 decision was wrong.  He concludes:

“Stare  decisis  instructs  us  to  treat  like  cases  alike.    The  result  in  this  case  is  controlled  by  our  decision  four  years ago invalidating a nearly identical Texas law.  The Louisiana  law  burdens  women  seeking  pre-viability  abortions  to  the same extent as the Texas law, according to factual findings that are not clearly erroneous.  For that reason, I con-cur in the judgment of the Court that the Louisiana law is unconstitutional.”

But here’s something interesting: when Roberts gives his explanation of stare decisis, he does not cite the use of stare decisis in the abortion decision he bases his argument on!  Roberts’ concurrence here basically wants to roll the clock to Planned Parenthood v. Casey (1992).  Here was how that decision framed the stare decisis inquiry:

“So in this case we may enquire whether Roe's central rule has been found unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism discounted by society; and whether Roe's premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.” (855).

In other words, Casey’s interpretation of stare decisis isn’t just a formal exercise in like-cases-treated-alike.  It involves substantive considerations.   Roberts' omission of this is telling.