New York Times Contributing Opinion Writer Linda Greenhouse makes a plausible case for why Justice John Roberts voted to reinstate the injunction against the Louisiana abortion law while litigation proceeds in the lower courts:
The chief justice voted to grant the stay, in my estimation, because to have silently let the Louisiana law take effect without Supreme Court intervention would have been to reward the defiance that I’ve described here.
The “defiance” she described was the 5th U.S. Circuit Court of Appeals engaging in what can plausibly be called conservative judicial activism, to-wit: defying a binding Supreme Court precedent on a materially indistinguishable Texas law.
Lower courts are supposed to follow precedent from higher courts even when they think the higher court was wrong and even when they think they’ve got fair winds and following seas for setting a different course.
Although the 5th Circuit was correct that different facts can justify a different outcome, the differences must be material. It’s not enough, for instance, that “Austin” is a much different city name than “Baton Rouge.”
Greenhouse, an ardent Friend of Feticide, gives very short shrift to the materiality of the factual difference the 5th Circuit described (and engages in a lot of ad hominem), and I’m giving them short shrift as well just because I don’t care to shoot my whole day on this observation: When the statutes are very similar and the trial court spent six days hearing the factual basis for injunction, plus many pages “finding” those facts, it’s a tough legal sell to second guess its findings to strike down its injunction.