There’s a lot of talk that John Roberts is taking up where Anthony Kennedy left off, as the new “swing” justice. This is based not just on the memory of his role in the Obamacare tax vs. penalty brouhaha, but on a decision reached yesterday. As William Jacobson of Legal Insurrection writes:
Roberts…saw fit to make a public pronouncement after Trump criticized a San Francisco federal judge for a decision enjoining Trump’s new policy on processing asylum claims, which held that people who illegally crossed the border could not apply for asylum…
The injunction against the new asylum rules was upheld by the 9th Circuit, and the government sought an emergency stay. In a 5-4 Order released [Friday], the Court rejected the stay, with Roberts joining the four liberal justices…
In other words, while awaiting a ruling on the merits, a San Francisco judge had earlier enjoined the federal government from changing previous policy on asylum. When Trump criticized the San Francisco judge as being an “Obama judge,” Roberts—in a public statement unusual for a sitting SCOTUS justice—criticized Trump and stated that there’s no such thing as “Obama judges or Trump judges, Bush judges or Clinton judges,” and that judges are “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Translation: don’t you dare imply that judges are political; we are above all that!
Then yesterday, by refusing to stop the San Francisco judge’s injunction, Roberts became the swing vote when the same issue came to the Supreme Court. He voted with the liberals in allowing the previous injunction to remain in effect.
This was not any sort of decision on the merits; it was merely a decision not to reverse the San Francisco judge’s decision, pending a later ruling on the merits of the asylum question. It was also a defense of that judge as being a member of that “group of dedicated judges doing their level best to do equal right.” Perhaps, to Roberts’ way of thinking, had Roberts voted to reverse the decision of that San Francisco judge, it would have lent support to the idea that the San Francisco judge had been motivated by “Obama judge” partisanship to make an incorrect ruling.
It may be that, when the asylum question is heard on the merits, Roberts will end up voting with the conservatives and uphold Trump’s position. Perhaps. But I believe that in the meantime Roberts was deeply offended by Trump’s criticism of the judiciary, even though I think Trump was absolutely correct in that criticism.
I believe that there are at least three more things operating with Roberts in handing down this decision. The first is that most people, especially ambitious people—and that includes SCOTUS justices—are attracted to power. Power is enticing, and increasing one’s own power is always tempting. So what could be more powerful for Roberts than becoming a swing justice? It would mean that a great many huge and important cases would turn on what Roberts thinks.
Secondly, Roberts was nominated by George Bush. What better way for Roberts to prove that he’s no “Bush judge” than to vote with the liberals? So that’s another motivation to do what he did yesterday.
Thirdly, I’ve noticed a tendency in Roberts—long before Trump became president—to vote in the way that is least likely to upset the status quo apple cart. For example, in the case of Obamacare, Roberts found a “creative” way to avoid a bold overturning of a bill that had been passed by Congress. In yesterday’s injunction case, the path of least resistance was to let the injunction stand rather than to overrule it. But when the case about asylum actually reaches SCOTUS, Roberts could go either way—he might rule with Trump in order to uphold an executive order already issued, or he might rule against Trump in order to support the implementation of the pre-existing (pre-Trump) policy on how asylum is handled.
