Professional court watchers on the right are buzzing this week because Roberts sided with the court’s liberal wing on the issue of what “sex” in the 1964 Civil Rights Act means, and then on the issue of whether executive branch officials had acted legally to end the Deferred Action for Childhood Arrivals (DACA) program. That he was joined by Justice Neil M. Gorsuch on the meaning of “sex” did not deter his longtime critics. Roberts is just another way of spelling “David Souter,” we are told. “Just like the ‘Obamacare’ decision,” is always part of this refrain.
Roberts’s decision on the Affordable Care Act remains a masterpiece of Supreme Court history, both allowing the political system to render a verdict on the law while cementing a consensus on the limits of both the spending clause and on the reach of the commerce clause. That Roberts has stood solidly with the originalist bloc on the court —mark well the Citizens United and Hobby Lobby decisions — matters not among many on the right. Those disposed to slam Roberts before now believe they have two new outrages to add to their litany of charges.
Sen. Josh Hawley (R-Mo.) declared the end of the conservative project of filling the federal courts with “originalist” judges, adding that Monday’s ruling on the 1964 law fractured the “bargain” the Republican Party made with religious conservatives. Sen. Tom Cotton (R-Ark.) suggested Thursday after the DACA ruling that the chief justice was so political that he should resign from the court and run for office.
Hawley and Cotton are among the brighter lights of the Beltway; both men may run for president in 2024; both will certainly aim for the office someday. And they reflect the belief among some voters that Roberts wrongly refuses either to impose “conservative” results upon the country or to allow elected conservatives to regulate as liberals do. (Roberts defenders assert he does not oppose the regulation, but rejects sloppy work.) Critics accuse him (and Gorsuch, in the Title VII case) of legislating from the bench.
But the court is not a think tank or lobbying shop, with the chief justice as it’s all-powerful CEO. He is the head of the Constitution’s third branch of the federal government, which umpires disputes about the Constitution, statutes and regulations among and between the other branches, among the states and the federal government, across the decades and across the political spectrum.
That the DACA policy was wrongly imposed by the former president’s lawyers, for example, does not allow its repeal, in Roberts’s view, based on incoherent or insufficient reasoning on the part of the current president’s lawyers. The chief justice is demanding from the Trump administration a fully detailed, coherent argument on “why” it is acting in a way that the Administrative Procedure Act requires. The four “conservative” justices thought the Justice Department provided explanation enough; Roberts did not. This is not the stuff of republics rising or falling. It’s not a constitutional holding. It is just an Administrative Procedure Act ruling.
Last year, I urged the White House to move quickly and lay the groundwork for a new census question about citizenship that it wished to add to the 2020 survey. The administration did not even try, though the chief justice seemed to be asking it to do so. As a result, the question is not on the census questionnaire.
Now that the court has ruled on DACA, the administration can immediately undertake to write a new rule on the matter and the president (if he chooses) can campaign on that rule. Arguably, the chief justice has done a political service to the GOP: Trump gets to run as a president respectful of the court’s rulings while not obliged to send any of the “dreamers” away. Trump probably should send Roberts a bottle of wine and some flowers.
That’s a consequence, by the way, of Roberts’s ruling, but it is not his design. He’s just calling balls and strikes. Like every other umpire, he has his critics. But he isn’t changing the rules of the game.
I know what the dissents say. I actually read them. Those who criticize justices for this or that decision without waiting for the end of this term are jumping the gun. “Freedom and federalism” conservatives may have some heartburn this past week. Next week brings us the Louisiana abortion law case and another involving whether religious schools can hire and fire according to their religious doctrines. Those are cases that rest on first principles, not process or competing visions of “textualist” approach to statutes.
Finally, personal attacks on individual judges have not been balanced from the left or the right. Engaging in personal attacks is not conservative in any way and hypercriticism encourages defeatism. It also risks the resolve of conservatives to fight to win the elections that allow the judiciary to be slowly rescued from the judicial activism that has plagued it for many decades.
Trump has named two justices to the Supreme Court and 52 appeals court judges. Reelect him, conservatives, and the federal courts, all of them, will continue to renew and revitalize themselves.