Scott Karson: Jury Still Out On Chief Justice Roberts | WAMC

Scott Karson: Jury Still Out On Chief Justice Roberts

Jul 17, 2020

Recent U.S. Supreme Court decisions on abortion, LGBTQ rights and protections for undocumented immigrants had liberals cheering Chief Justice John Roberts Jr. and conservatives decrying his perceived leftward shift.

The reality is that on these and other critical cases neither side can claim a complete victory in Roberts’ votes.

Indeed, Roberts acted admirably in putting precedent over politics, aligning himself with the Court’s four liberal justices in a manner interpreted as an effort to prevent the bench from skewing dramatically to the right and aligning too much with the Trump White House.

But the decisions were also in keeping with Roberts’ oft-quoted comments during his nomination hearings, in which he said that judges “are like umpires,” adding: (quote) “Judges don’t make the rules, they apply them.”

In these rulings, Roberts notably did not weigh in on matters of substantive law or policy, nor did he apply constitutional principles. To do so would have been definitive and given the Court the final say, providing clear winners and losers in long-running debates.

Instead, the Chief Justice made decisions based on HOW the cases before the high Court had been reached, offering a lifeline to the Trump administration and its conservative base in a crucial election year.

Take the decision on the Deferred Action for Childhood Arrivals program, known as DACA, which protects from deportation some 700,000 undocumented individuals brought to this country as children.

Roberts led the Court in ruling, 5-to-4, that the Trump administration committed a technical procedural error when it sought to end DACA, by violating a federal law known as the Administrative Procedure Act.

In writing for the majority, Roberts did NOT opine on whether rescinding DACA was legal, or whether rescission was warranted. Instead, he determined the administration erred on procedural grounds.

In fact, Roberts wrote that the administration has the authority to rescind DACA – provided it goes about it the correctly. And, he wrote, the Department of Homeland Security should consider anew whether DACA and the protections it affords should continue.

A similar situation played out with the Court’s ruling that struck down a Louisiana abortion law. Again, Roberts sided with the liberal justices in the 5-to-4 ruling.

In a separate concurring opinion, Roberts said the Court had little choice but to rule in this manner, noting it had rejected a similar Texas law four years earlier.

Roberts did not say the Louisiana law was unconstitutional. Instead, he wrote that the validity of admitting privileges law depends on factors that vary from state to state. Some interpreted this as opening the door to future abortion rights battles.

It could be argued that while he has infuriated conservatives, Roberts also handed the right a gift, giving them something to rally around as the president girds for a difficult re-election fight.

The outcome in November will have a significant impact on the Court – and Roberts’ power. If Americans reelect Donald Trump, he likely will be able to appoint replacements for two liberal leaning justices – 87-year-old Ruth Bader Ginsburg, and Stephen Breyer, who is 81.

Trump will likely select two more conservative jurists, thus outflanking Roberts on his right. But should Democrat Joe Biden be elected and face the same two vacancies his selections will not significantly alter either the Court’s ideological balance or Roberts’ influence.

It is understandable that the Trump administration and many of his right-leaning followers are unhappy with Roberts and floating a more robust High Court vetting process with a stronger role for social conservatives.

There is a long history of Supreme Court justices disappointing the presidents who selected them. Republican President Dwight Eisenhower reportedly said that his two biggest mistakes were appointing Chief Justice Earl Warren and Associate Justice William Brennan, the driving forces behind the Court’s liberal decisions of the 1950s – including the landmark school desegregation case, Brown v. Board of Education. 

But before conservatives despair of Roberts – or liberals call him an ally – they should consider this: Of the dozen 5-to-4 cases the Court decided in this term, Roberts alone was in the majority every time. He sided with the liberals only twice. He also handed the right decisive wins in cases involving religious freedom and the separation of powers between the executive and legislative branches.

The final chapter on Roberts’ has yet to be written. It is too early for either side to declare him theirs, but his long-established conservative leanings clearly continue.

Scott M. Karson is president of the New York State Bar Association.

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