Seventy-four items have gone into the figurative laundry of the U.S. Supreme Court’s current term. Two more worth noting came out of the dryer on Monday, though one shrank in the heat.
Of the two cases, of more tangible concern to most people is the one involving access to abortion. Here, the status quo is intact. Roe v. Wade guarantees women the right to end a pregnancy with limited restrictions. But some states have, in effect, created abortion-free zones by placing administrative limits on doctors who perform the procedure. On Monday, the court struck down such a law from Louisiana, just as it had with a similar Texas law in 2016, for placing an “undue burden” on access.
The Texas and Louisiana laws were nearly identical, wrote Justice Stephen Breyer in the prevailing opinion. If so, what changed to bring the matter up for reconsideration? Breyer didn’t say it, but we will: The court did. Justice Anthony Kennedy retired and Justice Brett Kavanaugh replaced him, forming an ostensible anti-abortion majority. How that ultimately plays out under the court’s interpretive powers is an open question, but for now, Chief Justice John Roberts performed Kennedy’s swing role, concurring in the Louisiana ruling even though he had dissented in the Texas case. His reasoning? That, absent special circumstance, the court should stand by things decided.
The second notable ruling on Monday is where shrinkage occurred. The question was whether the leadership structure of the Consumer Financial Protection Bureau is constitutional, and if not, could the agency itself be?
The CFPB was created in 2011 after the banking bust that led to the Great Recession. It was designed to be independent, but unlike other such agencies that are governed by a board, it is governed by a single director. The director is appointed by the president but does not serve at the pleasure of the president — that is, cannot be removed from the job except for cause.
Here the court was being asked to accede to something unprecedented, Roberts wrote for the majority. He concluded that the director “wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy,” and that insulating such a person from presidential control violates the separation of powers. The court found separately that the agency can exist if the director can be fired at will, or if Congress revises the leadership structure. Still, a degree of independence has been lost.