Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.
The Chief Justice’s decision to concur in the judgment in June Medical Services, L.L.C. v. Russo illustrates the usual political phenomenology of conservatism as the alleged antithesis to the principles of the liberal revolutions. Jaime Balmes, one of the great Catholic political philosophers and theologians of the 19th century, described the movement of all conservative political action in an 1844 article about the rise of moderate and conservative parties in Spain:
The party of 1833 was baptized by its instincts and was called moderate; the party that was born in 1844, whose life reconcentrates on the great idea of government, was baptized by its system and is called conservative: the first was destined to moderate the impulses of a revolution that was daring in its purposes and violent in its tactics; the other is destined to conserve the settled interests of a revolution that is now consummated and recognized.1
The historical details of the situation Balmes is addressing are less important than his clear diagnosis of a general political type. Conservatism has two modes in its inevitably futile opposition to revolutionary politics. The first is to moderate it, declare opposition to it, but to do so chiefly in the interest of restraining its most offensive excesses. By focusing on what he considers to be those excesses rather than on the principle that explains them, the moderate ends up being pulled to a position somewhere midway between his own and the revolutionary’s. But because there can be no real reconciling between the first principles of the true (Catholic) conservative and those of the true (liberal) revolutionary, this partial capitulation always results in a victory for the revolutionary. The stretch of political road, as it were, that the liberal revolutionary has forced the moderate to traverse in the argument is now legitimized by the fact of him traversing it.
The second mode is to conserve the achievements of the revolution once they are attained. Because he does not wish to be seen as supplying principles or arguments that may rock the foundations of social order, whatever they may be, the conservative cannot but assent to the new arrangements that the revolutionary has created at his expense. The revolution’s new order is the law now, and the law must be obeyed, says the conservative, for if we try to uproot it, will we not be supplying the revolutionary a further pretext to uproot other good institutions?
John Roberts, dissenting in Whole Women’s Health v. Hellerstedt, played the part of the moderate in the Balmesian drama. He dissented from the judgment that abortion regulations in Texas, similar to the ones at issue in June Medical,were unconstitutional. Now that Hellerstedt — a case decided in 2016 — is the law of the land, however, what can a conservative do but conserve it? Faced with an analogous case, Roberts the conservative conserver now holds that stare decisis determines the issue, though he makes it clear that it is this aseptic procedural rule—not the messy substantive question at the heart of the case—that forces his hand. One of the structural pillars of the legal order is relied upon to sustain a result which in the prior case he held to be incorrect precisely on the grounds that it was destructive of that very order.
The Balmesian play renews itself with a new cast. As a moderate, Roberts opposes the revolution’s impulses, seeking to trim its excesses. Then, having lost, he defends as a conservative the prior victory of the revolution even though—or rather, because—he rejects it on the merits.
Rafael de Arízaga
[…] upon Spanish philosopher and theologian Jaime Balmes, Rafael de Arízaga makes the case that John Roberts is a conservative in the truest sense—the sense of the […]