As a result, the Fifth Circuit said, the case in June Medical Services is totes different from the identical case of Hellerstedt. And thus it is totes constitutional too.
It’s hard to believe that the Fifth Circuit’s opinion was even intended to pass the straight-face test. There are two reasons for that suspicion. First, the Fifth Circuit decision was written by Judge Jerry E. Smith. Smith, a Ronald Reagan appointee, during his three decades on the bench has displayed some tendencies toward assuming an authority not strictly warranted by his commission.
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Smith was the author of a 1996 affirmative-action case called Hopwood v. University of Texas. In that case, he wrote for a majority that a previous Supreme Court case, Regents of the University of California v. Bakke, was no longer binding in the Fifth Circuit. The Supreme Court had not said so, but Smith thought the decision was a bad one; he didn’t think the Supreme Court liked it either and thought it was about time the high court reversed it. (The Supreme Court, in fact, later reaffirmed Bakke.) Smith’s self-confidence verged on megalomania in 2012 when he ordered the attorney general of the United States to write him a letter explaining political comments by President Barack Obama about a case that was not before Smith’s court, and to which Obama was not a party.
So we might call Smith’s judicial philosophy freewheeling—or, to be more precise, lawless. In his June Medical Services opinion, he in essence overruled the Supreme Court’s decision in Hellerstedt. That level of hubris is probably explained by the true difference between Hellerstedt and June Medical Services.
The facts on the ground in Louisiana and Texas are roughly the same, but the facts on the ground of the Supreme Court are not. That is to say: Justice Anthony Kennedy, who provided the fifth vote in Hellerstedt, is no longer on the Court. His seat is now filled by Justice Brett Kavanaugh.
The message of the Smith opinion is: We’ve got the votes now. Hellerstedt, and then Planned Parenthood v. Casey, and then Roe v. Wade, are finished. I can write any nonsense in this opinion and you can’t do anything about it.
Is he right? Kavanaugh’s dissent may be the real news here. He notes the supposed factual discrepancy and suggests that the court should just allow the law to go into effect. The lazy doctors could try again to get admitting privileges. The state has promised not to enforce Act 620 “aggressively,” he says, so no one will be hurt.
His argument, in essence, is: Trust a government regulator with your rights. What could go wrong? This is, let’s say, an uncharacteristic argument for a conservative.
After the temporary stay of Act 620, the Court has a few choices. It could issue an unsigned opinion saying that Hellerstedt—only three years old—is still the law. It could also grant full-scale review and ask the parties to argue whether it should reconsider Hellerstedt. That would suggest a cavalier view of precedent, but at least the Court would be leveling with the country.