Yesterday, Ius & Iustitium presented a collection of short pieces about the Supreme Court’s decision in June Medical Services, L.L.C. v. Russo. With at least one more round of major decisions later this morning (and the possibility of more decision days), we thought it was wise (and convenient) to gather the pieces on June Medical in one place. A link to each piece is embedded in the author’s name.
Relying 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 revolutionary era of the 18th and 19th centuries. The conservative in a revolutionary era attempts to moderate the revolution when in progress and entrench it once successful. However, keen observers might notice that under no configuration of circumstances is the revolution delayed or rolled back.
In his opinion, Roberts presents, by means of Edmund Burke, stare decisis as an act of profound judicial humility. Not so, argues Adrian Vermeule, who notes that Roberts’s approach is ultimately an approach that rewards the arrogance of the initial judges. Other legal systems, more perfectly founded upon the traditional jurisprudence of the ius commune, come much closer to the goal of judicial humility than Roberts’s vision of stare decisis.
Yves Casertano presents June Medical as a bullfight. Much like the bull, convinced that he might win the fight, pro-life advocates have long thought that clever arguments on neutral, technical grounds would persuade the Supreme Court to reach a substantively good outcome. Such neutral arguments do an injustice to the pro-life position. What’s worse: they result in defeats like the one yesterday. The bull never wins.
Pater Edmund Waldstein, O.Cist., turns a critical eye to Roberts’s invocation of Edmund Burke. With a little help from Alasdair MacIntyre, Pater Waldstein demonstrates the fatal ambivalence at the heart of Burke’s conservative thought. On one hand, Burke can give an entirely reasonable account of the natural law; on the other, he can use the same arguments to support a monstrous outcome—in the name of preserving order. Pater Waldstein connects this ambivalence with Roberts’s refusal to try to weigh the supposedly incommensurable potentiality of human life against the right of women to self-determination.
Finally, Pat Smith points to Roberts’s by-the-book originalism and concept of stare decisis to warn that Roberts’s apparent invitation to challenge Casey may not be any more successful than the challenge to Hellerstedt. Smith also links Roberts’s concurrence in June Medical with Justice Neil Gorsuch’s opinion in Bostock v. Clayton County (the Title VII case), noting that once again purportedly “neutral decisional technology” has led to results that conservatives must acknowledge are substantively bad.
