On Monday, the Supreme Court issued its long-awaited decision in June Medical Services v. Russo. Five justices voted to strike down a Louisiana law requiring doctors who perform abortions to have admitting privileges at a hospital within 30 miles. But while Chief Justice Roberts was one of these votes, he did not join the opinion in which Justice Breyer announced this judgment. Rather, he wrote separately to (1) explain why he agreed with the result (because of stare decisis, given that the Court had decided the almost identical issue just several years prior), and (2) to register his disagreement with the plurality’s interest-balancing test. I’ve previously written about how Justice Gorsuch’s rejection of an interest-balancing test in Ramos v. Louisiana might inform his views of Second Amendment methodology, and in this post I do the same for the Chief’s separate opinion in June Medical.
In his opinion for the four liberal justices, Breyer stated that the Court’s “undue burden” standard for assessing abortion restrictions “requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s ‘asserted benefits against the burdens’ it imposes on abortion access.” It was primarily this methodological framing that the Chief pushed back on. In his view, a balancing test in which a court weighs the state’s interests against the woman’s is unworkable when dealing with a conflict of such intense and incommensurable interests. “There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were.” Rather, Roberts continued, the appropriate undue burden inquiry “focuses on the existence of a substantial obstacle, the sort of inquiry familiar to judges across a variety of contexts.” He cited cases dealing with whether a law imposes a substantial burden in the context of RFRA, free speech, and ADA cases. Roberts’s hostility is not new to June Medical (as my colleague Joseph Blocher has well documented here). He joined the opinion in Heller expressly rejecting such an approach to the Second Amendment.
In Heller, Justice Breyer (in dissent) called on the Court to adopt just the sort of balancing test he puts forward in June Medical. As he said in Heller, the question should be “whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” On one side of that equation are “the interests protected by the Second Amendment” and on the other lie “the governmental public-safety concerns.” Writing for the majority, Justice Scalia rejected that approach. He stated that Breyer’s test was not like any “of the traditionally expressed levels [of scrutiny] (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering” framework. Nonetheless, Scalia did not announce an alternative framework. Rational basis and interest-balancing were forbidden, but nothing was put in their place.
As lower courts have applied Heller in the years since, they have coalesced around a two-part framework that typically ends in courts applying intermediate scrutiny to gun regulations. That test—certainly one of “the traditionally expressed levels” of scrutiny in the Court’s jurisprudence—requires courts to determine whether the law is substantially related to an important government interest. There may even be an argument that the Chief’s substantial-burden test could be seen as a modified version of this approach. But some judges (like Justice Kavanaugh) and commentators think the two-part framework is nothing more than the Breyer-style interest-balancing the Court ruled out. Allen Rostron has gone so far as to call the widespread adoption of the two-part framework “Justice Breyer’s triumph” over the battle on Second Amendment methodology. In his recent dissent from denial of certiorari in Rogers v. Grewal, Justice Thomas cited Rostron’s work and implored his colleagues to reject the two-part framework now firmly entrenched in the lower courts and adopt the alternative text, history, and tradition (THT) test. Indeed, after citing Rostron, Thomas asks, “[w]ith what other constitutional right would this Court allow such blatant defiance of its precedent?” (It’s worth pausing to note the irony of this statement given Thomas’s vote in June Medical.)
So far, the THT test has been the principal alternative to the two-part framework. (The few arguments for an undue-burden-like standard in the Second Amendment context have not met with success, as I’ve discussed in a forthcoming article.) And so far, only two justices (Thomas and Kavanaugh) have voiced their support for THT. In the coming years, as the fight over Second Amendment methodology intensifies, much of the battle may come down to how convincingly gun-rights advocates can frame the two-part test as nothing more than judicial interest-balancing. If they can do so, the Chief’s opinion in June Medical gives one more reason to suspect they’d earn his vote to sideline that framework.