Adam McCoy

Chief Justice John Roberts has received relentless attention lately as the new potential swing vote on the United States Supreme Court. The entire legal community is looking for indications on how he will rule on a variety of legal issues. The Court has yet to take up many of the most controversial potential issues, however recent decisions do give some indication of how Chief Justice Roberts may guide the Court for the foreseeable future.

Chief Justice Roberts has recently used his vote and opinions to make clear to the legal world that the Supreme Court itself holds the unique authority to overturn precedent from the nation’s highest Court. In June Medical Services v. Gee, Louisiana had recently passed a law, which the Fifth Circuit upheld, requiring abortion providers to have admitting privileges at a hospital within thirty miles of where the abortion is provided. This law is identical to the law the Supreme Court struck down as unconstitutional in Whole Woman’s Health v. Hellerstedt by finding it placed an undue burden on the woman’s right to an abortion. Chief Justice Roberts dissented in Hellerstedt, however when Louisiana passed a law in direct contradiction to that existing precedent, he still granted an injunction to stop implementation of the law. Even if Chief Justice Roberts would prefer the law was different than Hellerstedt, his vote in June Medical Services shows he will likely not let states and lower courts contradict precedent on their own.

Chief Justice Roberts underscored his insistence lower courts follow all Supreme Court precedent by siding with the liberal leaning justices to stay the execution of Bobby Moore in Moore v. Texas. Again, the Chief Justice dissented in the earlier case, which stayed Moore’s execution in 2017 and remanded to the Texas court with instructions on how to evaluate Moore’s intellectual disability. However, when Moore’s case returned to the Supreme Court, he switched his vote and agreed to stay the execution. Specifically, Chief Justice Roberts said the Texas Court of Appeals “misapplied” the Court’s previous opinion.^[1] The Texas court “repeated the same errors that [the] Court previously condemned—if not quite in haec verba, certainly in substance.”^[2] Chief Justice Roberts had dissented from that previous condemnation of errors, however when the lower court ignored that order from the Court, he switched his vote to force lower courts to abide by existing Supreme Court precedent.

The importance of precedence was reemphasized in Madison v. Alabama, by Chief Justice Roberts joining the opinion of Justice Elena Kagan holding the death penalty unconstitutional when dementia prevents the prisoner from understanding the state’s reason for the execution. Again, the Chief Justice provided the decisive fifth vote by joining with the liberal leaning members of the Court. Justice Kagan grounded her opinion in the Court’s previous decision in Panetti v. Quarterman, which held the Eighth Amendment prohibits executing a prisoner whose psychotic delusions prevents them from understanding the state’s reason for the execution. Chief Justice Roberts dissented from Panetti and disagreed with the Court’s conclusion if the prisoner did not understand the reason for the execution then the execution had no retributive value. 

However, in Madison he provided the decisive fifth vote for Justice Kagan to expand the precedent of Panetti to include prohibiting execution when memory loss is the reason the prisoner cannot understand the reason for the execution. Justice Kagan said the logic from Panetti focused on whether the mental defect, in this case memory loss, had the effect of creating “an inability to rationally understand why the State is seeking execution,” and when that understanding is missing the prisoner cannot be executed.^[3] Chief Justice Roberts supported treating this precedent as controlling and using it to decide Madison, despite the fact he dissented in the original case.

These recent decisions indicate that respect for precedent will play a critical role in how Chief Justice Roberts leads the Court in the coming years. Even if the Chief Justice dissented in an earlier case, he will not simply treat that decision as illegitimate, but will require the Court to operate under the acknowledgment of that precedent. Additionally, Chief Justice Roberts has sent the message that states and lower courts must respect all precedent from the Supreme Court, and only the Court can change its own precedent. Chief Justice Roberts is making it clear that acknowledgment and respect for precedent will play a necessary role in how he evaluates future cases and how he eventually decides to cast his possibly deciding vote.  

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^[1]Moore v. Texas, 586 U.S. ___, ___ (2019) (Roberts, C.J., concurring) (slip op. at 1).

^[2]Id.

^[3]Madison v. Alabama, 586 U.S. ___, ___ (2019) (slip op. at 12).