I thought of Orwell as I traced the mental gymnastics of Chief Justice John G. Roberts Jr. as he steered one of the final decisions of the Supreme Court term. At issue was the attempt by Commerce Secretary Wilbur Ross to add a question about citizenship to the 2020 Census. Roberts agreed with his right-leaning colleagues that Ross had the authority to make the decision as he did. But then, agile as an acrobat, the chief justice flipped to the other side and blocked the citizenship question, declaring that
Ross had misused his authority by lying about his reasons for asking.
This slapdown of the Trump administration came in five parts, with a couple of sub-parts for good measure. As one part led to the next, Roberts marshaled a shifting roster of support from his associates. By the time he finished, the chief justice managed to have each of them with him at some point along the way — and each against him. But always, he controlled the majority.
These twists and convolutions were worthy of an Olympic floor exercise, and called to mind his similar performance in another high-profile controversy. In 2012, Roberts joined half of his colleagues to bail out Obamacare — but in the same opinion, he also joined the opposing half to blast a few holes into the hulking bureaucratic dreadnought.
Such supple intellectual tumbling is the chief justice’s signature, and it irritates many conservatives. Roberts, the Wall Street Journal declares, is “proving he won’t be pinned down by the law or judicial philosophy.” That’s definitely not a compliment in the Journal’s book. However, in today’s riotous competition between ideologues and pragmatists, Roberts wisely avoids philosophical purity. Instead, he is the rare conservative willing to think strategically about what he is trying to conserve.
His answer is urgently important. The conservative John Roberts is trying to conserve, as best he can in these divisive times, the institutional credibility of the Supreme Court. To have any hope of success, he must occasionally break the strict rules of his conservative judicial philosophy.
In the Obamacare case, for example, Roberts clearly perceived that strong Republican factions were counting on the conservative justices to do the party a favor. Congressional Republicans could not win the Obamacare debate, so the party turned to partisan justices to win it for them. Roberts refused to play ball.
Now, he has sniffed out a similar ploy. The Trump cadre was caught phonying up the truth about their chaotic decision-making, and they wanted conservatives on the court to let it slide.
That’s what comrades do, right? Help each other out?
Such appeals to faction are most pernicious when rules are handy to mask and dignify them. In the
case of the 2020 Census, Ross relied on well-established rules that are central to conservative judicial philosophy. These rules severely limit the power of judges to second-guess executive-branch decisions. Yet evidence made it abundantly clear that Ross, a government novice, had used the Justice Department to create a pretext for his unsupported impulse. Roberts was right to blow the whistle on these “contrived reasons.”
He scoffed at Ross’s fig leaf. “We are not required to exhibit a naiveté from which ordinary citizens are free,”
he replied in his narrowly crafted ruling — a fancy way of saying that he noticed the nakedness behind the leaf. The proper modesty of the court does not mean it must surrender the field to a brazen executive. Or, as Orwell might put it, a tyranny of rules should not give power to the barbarity of an outright lie.
For this defense of common sense, Roberts quoted the late Henry J. Friendly
of the U.S. Court of Appeals for the 2nd Circuit. This was no accident. Considered one of the greatest judges of the 20th century, Friendly was a conservative Republican, a mentor to Roberts and a beacon of judicial independence. He would have agreed that a conservative-leaning court, to be credible, must say no when the Republican Party demands loyalty.
A conservative dedicated to conserving his institution, Roberts rightly refused to have the court play legislative backstop for the failed Republican challenge to Obamacare. He was right again in refusing to let a Republican Cabinet secretary lie to the federal courts. He could not protect the independence of the court without breaking a few ideological rules.