Sunday, June 21, 2020

It's Roberts' (somewhat less right-wing) Court (Part 1)

Source: Reuters//Jonathan Ernst
Sure, let's not go overboard. Despite some recent decisions welcomed by political liberals, the Supreme Court has hardly turned liberal.

Indeed, most decisions of the past year--let alone of the last few decades--have been those favored by political conservatives. Whether in civil rights and liberties, the rights of the accused, employment and labor law, war and foreign affairs, and other crucial areas that define the nation's principles, the Court has largely rendered rulings that conservative Republican politicians would reach if up for a vote in their elected representative chambers.
Neither can it be denied that the Court has issued some major politically-liberal decisions. And the difference often has been Chief Justice Roberts. He is the one who, more than any of the other conservative Republican appointees, has deviated from the Court's typical partisan divide.

There were some indications, even before the retirement of "swing vote" Justice Anthony Kennedy, of Roberts disrupting the holy political alliances among the Justices. ("Holy," because some members of the Court, such as the late Justice Antonin Scalia, would react to Roberts breaking with the conservatives as though it were blasphemy, heresy, or some other mortal religious transgression.) But the Chief Justice's breaking with the other conservatives has in the past few years become a foreseeable--if not expected--phenomenon of Court dynamics.

A quick survey of some major decisions in which Roberts voted on the politically liberal side of a hot-button issue should leave little doubt. Oftentimes, the Chief Justice authored the majority opinion himself--meaning that he often assigned the Court's opinion to himself in these high profile cases. And oftentimes, his vote was the deciding one in giving his liberal colleagues a victory over his usual conservative allies. Here's a sample:

Obamacare. Perhaps Roberts' best known break with the conservatives was his saving of Obamacare: his dispositive opinion for the 5-4 majority--himself and the Court's 4 liberals--upholding the constitutionality of the Affordable Care Act's "individual mandate." He did so, over the bitter opposition of the other 4 Republican appointees [Scalia, Kennedy, Thomas, and Alito], by characterizing the enforcement mechanism as a tax imposed within Congress's power, rather than an otherwise invalid penalty. National Federation of Independent Business v. Sebelius, 2012.

Three years later, Roberts again saved a major aspect of Obamacare: his 6-3 majority opinion--joined by all 4 liberals and Justice Kennedy [with Scalia, Thomas, and Alito dissenting]--upholding federal tax subsidies for all lower-income Obamacare insureds, even if their state declined to set up an insurance exchange. King v. Burwell, 2015.

Immigration. Like Obamacare, there are, of course, the immigration issues that have been among the most contentious and divisive along party lines. And like Obamacare, the Chief Justice saved DACA [the Deferred Action for Childhood Arrival program] from partisan attempts at elimination. In his majority opinion, this past week, for himself and the Court's 4 liberals--once again raising the ire of the other conservative Republican Justices [Thomas, Alito, Gorsuch, and Kavanaugh]--he declared the Trump administration's attempt to scrap DACA "arbitrary and capricious."
Moreover, Roberts made clear his determination that the administration's proffered reasons were dishonest, labeling them "post-hoc rationalizations" and "convenient litigation arguments." Department of Homeland Security v. Regents of the University of California, 2020.

A pair of related decisions should be included here: one dealing with state immigration policy; the other dealing with immigrants and, again, the Trump administration's dishonesty.

The immigration case, eight years prior to the DACA decision, involved an Arizona law allowing the arrest of any person, without a warrant, who the police suspected was an unauthorized immigrant "removable" from the United States. The Chief Justice joined a 5-3 decision--together with 3 liberals [Justice Kagan did not participate] and Justice Kennedy, who authored the opinion--invalidating the Arizona law for interfering with federal immigration policy. The remaining Republican appointees [Scalia, Thomas, and Alito] each wrote dissenting opinions emphasizing states' rights and denying any conflict with federal law. Arizona v. U.S., 2012.

The Citizenship Question--and Dishonesty Before the Court.  The other case related to the DACA decision was the one last year involving the Trump administration's attempt to insert a citizenship question on census forms. The Chief Justice's vote was decisive in thwarting this transparent attempt to undercount the population of states such as New York and California--home to large numbers of immigrants who would be discouraged from completing such a form.
In his 5-4 majority opinion, Roberts, joined by the Court's 4 liberals--and again denounced by the other Republican appointees [Thomas, Alito, Gorsuch, and Kavanaugh]--blocked this initiative of the administration, just as he did the attempted repeal of DACA, because the administration's beneficent rationale for doing so was a lie. That's my word, not his. But,  his words were no less pointed.
As Roberts himself put it, there was "a significant mismatch between the decision the Secretary [of Commerce] made and the rationale he provided." For emphasis, the Chief Justice repeated that "the evidence tells a story that does not match the explanation the Secretary gave." And just in case any doubt remained, he said the same thing a third way: the "rationale—the sole stated reason—seems to have been contrived."
Roberts concluded by leaving no doubt about his contempt for the administration's dishonesty. "We are presented," he wrote, "with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process." And therefore, the Court--meaning at least the Chief Justice with the 4 liberals--"cannot ignore the disconnect between the decision made and the explanation given." Department of Commerce v. New York, 2019.

Ok, let's start with those cases. Only a few, but major and very revealing.

We'll continue our look at the Chief Justice's and his Court's "somewhat less than right-wing" record next time with LGBTQ rights, search and seizure, the death penalty, and then a few other issues.