Chief Justice John Roberts saved Obamacare in 2012 – a move forever earning him the wrath of many Republicans – and on Thursday he preserved an Obama-era program that protects young immigrants who came to the US without proper papers, a direct rebuke to President Donald Trump.
Both times, Roberts joined with the court’s four liberals, as he did last year when he cast the crucial fifth vote to block a citizenship question on the 2020 census – another insult to the President.
“Do you get the impression that the Supreme Court doesn’t like me?” Trump tweeted.
The conspicuous moves by a generally reliable conservative reveal a chief justice trying to defuse disputes that bring the nation’s high court into tension with the US president.
They also reflect a pattern distinct to Roberts, who has shown in some rulings a pragmatic and political understanding of polarized America.
Roberts, who presided over Trump’s impeachment trial and acquittal earlier this year, has long demonstrated an interest in shielding the integrity of the judiciary and his own reputation. Throughout Thursday’s decision in the highly charged immigration dispute, his cool, lawyerly language focused on procedural matters belied the emotional stakes for nearly 700,000 people.
The chief justice wants officials, especially those in this Trump administration, to play by the rules.
“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote, trying to stress the limits of the court’s ruling. “The wisdom of those decisions is none of our concern. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”
Since his appointment 15 years ago by President George W. Bush, Roberts has staked out consistent conservative positions in most areas of the law. He curtailed the reach of the Voting Rights Act, making it harder to prevent arguably discriminatory election procedures before they took effect.
He also joined the bare five-justice majorities that produced the 2010 Citizens United decision lifting limits on corporate and union money in elections, and the 2008 ruling that broke ground on the Second Amendment and declared an individual right to bear arms.
At the moment, that record doesn’t matter to Trump and conservatives.
“Yet John Roberts again postures as a Solomon who will save our institutions from political controversy and accountability,” said Arkansas Republican Sen. Tom Cotton. “If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected.”
Trump says the rulings means it’s time for new blood on the bench.
“The recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court. If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and…
“…Religious Liberty, among many other things, are OVER and GONE!” the President tweeted.
For his part, Roberts is always aware of his own place in history and has famously played the long game.
“You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,” Roberts once said, referring to the chief justice known as the forefather of judicial review and to the chief who wrote the Dred Scott decision that said slaves were not citizens, respectively.
“The answer is, of course, you are certainly not going to be John Marshall,” Roberts said. “But you want to avoid the danger of being Roger Taney.”
Shattering one pattern; reinforcing another
Until Thursday, the Roberts court had mostly backed the Trump White House on immigration.
Since 2017, the high court majority has endorsed Trump efforts to deter immigrants and refugees to the US, most notably in the 2018 decision upholding the third iteration of Trump’s travel ban affecting certain majority-Muslim countries.
Earlier this session, the five-justice bloc on the right wing, including Roberts, allowed the administration to institute a policy disadvantaging green card applicants who applied, even in limited instances, for food stamps and other public benefits.
Still, Thursday’s new decision favoring immigrants adheres to a personal Roberts’ blueprint.
He has portrayed the bench as above politics, despite the many cases that split 5-4, Republican appointees versus Democratic appointees. Roberts said as a reproach to Trump in 2018: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Roberts’ votes with the left in high-profile cases, especially two involving President Barack Obama signature initiatives, make both their points to a certain extent.
To be sure, Roberts has voted many times against liberal policies, involving the environment, reproductive rights, racial remedies, and the separation of church and state. And there are no signs Roberts, whose began his Washington legal career in the Reagan administration, has abandoned his fundamental conservative attitudes.
He never lunges left, rather his moves to align with the four liberals on the bench nearly always come with limits or caveats.
In 2012, Roberts saved the Affordable Care Act by construing it is as part of Congress’ taxing power but as he also reined in Congress’ authority to regulate interstate commerce. And as he upheld the individual insurance requirement at the heart of the law, he voted to scale back the Medicaid expansion to help poor people.
In last year’s census dispute, he declared the Commerce secretary had full authority to add the citizenship question that challengers believed would reduce the responses of Hispanics and new immigrants. But Roberts, joined by the four liberal justices, found that in that situation that Secretary Wilbur Ross had fabricated a rationale he asserted for the citizenship question. Given the deadline to distribute the census, the practical result was to kill the idea of a citizenship question.
With DACA, the pattern continues.
With a decision focused on the intricacies of federal procedure, Roberts has allowed the administration to try again to rescind DACA. Yet such an effort would likely take months and be accompanied by further protracted litigation. That means no real change is likely to occur until after the presidential election.
The conservative response
At every turn, Trump has failed to see the federal judiciary – especially judges installed before he became President – as independent.
“Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country,” the President retorted to Roberts in 2018.
Despite Trump’s complaints, this Supreme Court, however, has sided with conservatives on a multitude of issues, including religion, gun regulation and reproductive rights. This bench is still dominated by right-wing interests.
Thursday, dissenting Justice Clarence Thomas wrote that Roberts’ modest-seeming move was actually otherwise.
“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas, appointed by President George H.W. Bush, said.
“The Court could have made clear that the solution (the challengers) seek must come from the Legislative Branch. … In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”
The four justices who protested Roberts’ 2012 Obamacare decision, including Thomas, similarly maintained that Roberts was shrouding a major decision in small-bore legalese.
“The Court regards its strained statutory interpretation as judicial modesty,” said the dissenting opinion led by the late Justice Antonin Scalia. “It is not.”