Chief Justice John Roberts Rebuked Trump This Term. What’s He Up To?
Friday, July 10, 2020
Chief Justice John Roberts' double-barreled rejection of President Trump's claims of immunity from grand jury and congressional subpoenas was a stunning end to a momentous term in which Roberts played perhaps the most pivotal role of any chief justice in close to a century.
In a remarkable series of decisions over the last month, Roberts has rebuked Trump on matters ranging from personal to policy.
In Thursday's decisions, with seven-justice majorities, Roberts once again pushed back on Trump's assertion of almost unlimited presidential power.
In other cases, he cast the deciding fifth vote, as he did when preventing Trump from ending the program that currently protects the so-called DREAMers from deportation. Similarly, he cast the decisive vote against reversing a major abortion precedent, and he even sided with Trump appointee Neil Gorsuch in ruling that the federal ban on discrimination based on sex applies to LGBTQ employees.
At the same time, though, Roberts has whittled away at federal agency independence and moved the court decidedly to the right on matters of church and state.
Frustration on both sides
If the decisions from the conservative chief justice seem dizzying, they are infuriating to hard-line conservative Trump supporters. Sen. Josh Hawley, R-Mo., has, for all practical purposes, disowned the chief justice he once clerked for, calling the LGBTQ opinion that Roberts joined, "the end of the conservative legal movement or the conservative legal project as we know it."
Sen. Tom Cotton, R-Ark., has repeatedly called on Roberts to resign. "If the chief justice thinks he has such excellent political judgment, I would recommend that he resign and travel to Iowa for the caucuses and see if he can earn the votes of his fellow Americans," he said on Fox & Friends on June 20.
While progressives may have breathed a sigh of relief after some of his crucial votes this term, they aren't thrilled with Roberts either, noting that when he sides with the court's liberals, his decisions are often hairsplitters that leave plenty room for future challenges from the right.
Thus, when the chief justice ruled against Trump's move to end Deferred Action for Childhood Arrivals, or DACA, his decision left room for an administration do-over. Roberts' opinion spelled out every administrative hoop that the administration would have to jump through to get rid of the program.
And when he cast the decisive fifth vote in this year's abortion case, he refused to join the opinion of the court's four liberals. Instead, he wrote separately, saying that a Louisiana law requiring doctors to obtain admitting privileges at nearby hospitals should be struck down because it was identical to a Texas law the court struck down four years ago.
By withholding his signature from the liberal plurality opinion, he deprived it of the power to create binding precedent to strengthen abortion rights.
If anything, he walked back some of the progress abortion rights advocates thought they had made in the 2016 decision, and he left plenty of room for anti-abortion forces to chip away at Roe v. Wade in the future.
Sending a message
What appeared to stick in Roberts' craw was the fact that anti-abortion forces and the 5th U.S. Circuit Court of Appeals thought they could defy the court and flip the outcome just because one justice had retired and been replaced by a Trump appointee.
It was a "crass political maneuver," says Harvard Law School professor Richard Lazarus, who has known Roberts since the two were roommates in law school.
"He's a very skilled jurist. He could easily have just said, 'Well, the [Louisiana and Texas] cases are different,' as [Justice Brett] Kavanaugh sought to do. But he chose a different path," says Lazarus, author of The Rule of Five: Making Climate History at the Supreme Court.
Instead, as Lazarus observes, Roberts "chose to use the case to make a point ... that there is such a thing as a court, and ... you can't expect us to behave like partisan legislators."
Lazarus also thinks Roberts' vote in the abortion case was a "shot across the bow" aimed at presidential candidates who campaign with a list of potential nominees to the court.
"I think he hates that," Lazarus says. "I think he's tried to send a very strong message as much as he can ... and I think he hopes to get the other justices to do some of the same."
Indeed, Roberts may be trying to set an example in other ways — for instance, when he joined Gorsuch's opinion declaring that the 1964 Civil Rights Act applies to gay and transgender employees because it bars discrimination based on sex.
Was Roberts giving Gorsuch cover, or did he really agree with the Gorsuch opinion, which was also joined by the court's four liberals? We may never know.
Power in the majority
Roberts voted in the majority an astounding 97% of the time this term. That means that in 51 out of 53 cases with signed opinions, he chose which of his colleagues wrote the opinion for the court majority, a power reserved for the chief justice when he is in the majority. It is also a power that allows the chief justice, when he is in the majority, to frame whether the opinion is going to be written by a justice using a broad brush, or a narrow one.
"He's taking control of the narrative of the court and imposing his own set of frameworks, imposing his own stamp on the court," Duke University School of Law professor Guy-Uriel Charles says.
Harvard law professor Noah Feldman says that "the chief's basic worldview hasn't changed." As Feldman sees it, Roberts is still a conservative, and he's "OK with the court being ideological" but not partisan, and that means adhering to precedent.
Still, as Feldman observes, the chief justice "wields a very deft doctrinal scalpel," which he can use to "slice and dice a precedent so there's almost nothing left of it."
Feldman contends that Roberts did just that in a recent case involving funding for religious schools in which the chief justice claimed to be following a precedent written by the man he once clerked for, the late Chief Justice William Rehnquist.
Instead, Feldman says, Roberts "eviscerated that precedent."
Roberts' opinions in the Thursday's subpoena cases, which together were much more deferential to state grand juries than to congressional power, saw the court muscle its way into more power relative to Congress, with the chief justice leading the charge.
"I think there is a ... sort of cross-partisan dismissiveness or disdain toward Congress," says Georgetown law professor Josh Chafetz, author of Congress's Constitution: Legislative Authority and the Separation of Powers.
The chief justice is "uniquely positioned right now. He is both the chief justice and the controlling vote" on a court split between hard-line conservatives and traditional liberals, observes Roberts' longtime friend Lazarus.
That hasn't happened since Charles Evans Hughes was chief justice in the 1930s.
Historian James Simon, author of a book about Hughes, points to a speech Hughes gave in 1927.
"He said, you know, if the public perceives of the court as partisan, politically partisan, it loses its authority. ... Essentially, Roberts is saying the same thing in 2018" when the chief justice issued a rare rebuke of Trump's reference to "an Obama judge."
As Simon told NPR, the main difference is that Hughes was a progressive Republican and Roberts is a conservative Republican. Hughes bided his time until he had more votes and could write broader opinions to the center-left, while Roberts may be biding his time to reach far more conservative decisions.
Voting as an outlier
There is, however, at least one area of the law where even this term, Roberts hasn't necessarily lived up to his own billing as nonpartisan: voting rights.
Duke professor Charles notes that when he was in law school (in the 1990s), law students were taught that one of the major roles of the Supreme Court was to enforce democratic processes.
"This is consistent with what Roberts told us during his confirmation hearings about how he viewed himself, that his role was to assure that the process was fair and that he was calling balls and strikes," he says. "He wasn't going to determine the outcome of the game."
But Charles says when it comes to policing the political process of voting, Roberts has taken a pass. In 2013, Roberts voted to strike down a major provision of the Voting Rights Act and authored the opinion. That decision effectively gutted the law, helping usher in a bevy of state laws designed to decrease voting power for minorities and making it harder to vote.
Even this term, amid a pandemic, Roberts has continued to be a stalwart conservative in voting rights cases. In three cases during the primary elections this year — in Wisconsin, Texas and Alabama — Roberts joined with his conservative colleagues to block orders from lower-court judges who were trying to assure voters that they could vote by mail to avoid exposure to the coronavirus.
"We're likely to see more litigation as we come toward November, and we have a court that says ... we're not going to get involved," Charles says. "The court ought to be patrolling the boundaries of the political process. The court ought to help us establish what is fair and what is unfair. And, of course, most of that involves making sure that eligible voters can exercise their right to vote."
Intern Emmett Witkovsky-Eldred contributed to this report.
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