Eighth Circuit Panel Finds that CJ Roberts's Opinion in June Medical is Controlling

And panel agrees with Justice Kavanaugh that "five Members of the Court reject[ed] the Whole Woman’s Health cost-benefit standard."

|The Volokh Conspiracy |

Today a per curiam panel of the Eighth Circuit decided an abortion case on appeal from Arkansas. The panel applied the Marks rule, and found that Chief Justice Roberts's concurrence is controlling. As a result, the panel concluded, there are now five votes to reject Whole Woman's Health's benefit/burden framework.

As a result, Chief Justice Roberts concluded that "[i]n this case, Casey's requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore a sufficient basis for [striking down the Louisiana admitting-privileges law], [just] as it was in Whole Woman's Health." Id. Nothing in Casey required "consideration of a regulation's benefits." Id. Chief Justice Robert's vote was necessary in holding unconstitutional Louisiana's admitting-privileges law, so his separate opinion is controlling. See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that when "no single rationale explaining the result [of a case] enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds'" (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.))). In light of Chief Justice Roberts's separate opinion, "five Members of the Court reject[ed] the Whole Woman's Health cost-benefit standard." June Med. Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting).

Did the Chief quietly overrule WWH without saying so expressly? Did Blue June have a tinge of red?


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  1. It takes 5 votes to win. How can any one vote be singled out as decisive?

    1. That’s Marks. It’s an approach that certainly has its problems, but it’s what’s on the books.

    2. Because if no single viewpoint has five votes, you go with the narrowist one. For example, if four members of the court say that something is always permissible, and a fifth member says it’s permissible but only because today is Wednesday, the Wednesday ruling is narrower so it controls. The other four needed the Wednesday ruling to get to the bottom line holding of it being permissible.

      1. Thanks. Sometimes the arcane rules make sense, once explained.

  2. 11 active 8th circuit judges. 10 GOP appointees, one lone Dem.

    So no en banc.

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