The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Blue June Glooms On
The Chief feints left on abortion, tiptoes to the right on the CFPB, and Thomas is still waiting for Godot
I have now finished reading June Medical Services and Seila Law. Collectively, they total 243 pages! Both cases are now edited for the Barnett/Blackman supplement--down to 26 pages each. It took me all day. If you'd like a copy, please e-mail me: josh-at-josh-blackman-dot-com.
Last week I predicted that Roberts would write June Medical and Breyer would write Seila Law. I whiffed on Seila. I mostly got June Medical correct.
June Medical split 4-1-4. By my reading, Roberts's opinion is the most narrow. But putting asides the nuances of the confounding Marks Rule, the writing is on the wall for the future of Whole Woman's Health. Justice Kavanaugh offered a helpful count in his dissent:
Today, five Members of the Court reject the Whole Woman's Health cost-benefit standard. Ante (ROBERTS, C. J., concurring in judgment); ante (THOMAS, J., dissenting); ante (ALITO, J., joined by THOMAS, GORSUCH, and KAVANAUGH, JJ., dissenting); ante (GORSUCH, J., dissenting). A different five Members of the Court conclude that Louisiana's admitting-privileges law is unconstitutional because it "would restrict women's access to abortion to the same degree as" the Texas law in Whole Woman's Health. Ante (opinion of ROBERTS, C. J.); see also ante (opinion of BREYER, J., joined by GINSBURG, SOTOMAYOR, and KAGAN, JJ.).
Going forward, there are five votes to limit the Court's abortion framework to consider a a law's burdens, without weighing the law's benefits. The Chief has effectively overruled Whole Woman's Health to the extent it departs from Casey. The Chief didn't swing to the left; at most, he feinted left for this Blue June.
Of course, who knows what the next abortion case will bring? Maybe the Chief's game of "87‐dimensional chess" will finally yield a checkmate.
Speaking of the proverbial "long game," Roberts largely viewed Seila Law as a continuation of Free Enterprise Fund v. PCAOB (2010). That case was decided a decade ago--the same period of time that elapsed between Meyer and Humphrey's Executor. Yet, Roberts described that decade-old case as being decided "recently." That simple descriptor reveals the glacial pace with which Roberts views the law. Ten years is a blip. After all we are now twelve years from Heller. Still waiting.
On that note, Justice Thomas had a delightful footnote in June Medical about the Court's Second Amendment jurisprudence:
Today, the plurality reaffirms our precedent allowing beer vendors to assert the Fourteenth Amendment rights of their potential customers. Ante (citing Craig v. Boren (1976)). But it is fair to wonder whether gun vendors could expect to receive the same privilege if they seek to vindicate the Second Amendment rights of their customers. Given this Court's ad hoc approach to third-party standing and its tendency to treat the Second Amendment as a second-class right, their time would be better spent waiting for Godot.
I will have much more to say about these two cases. For now, Blue June rolls on. And we will see another batch of decisions in about 8 hours.
