If John Roberts Isn’t a Conservative, What is He, Exactly?

We are told that ours is a government of laws and not of men. But is it? Those rote words of assurance are called into question by the sad saga of President Obama’s executive initiatives for Deferred Action for Childhood Arrivals, or DACA, and by President Trump’s ill-fated effort to reverse those actions through his own executive authority. The outcome should be alarming to anyone who cares about constitutional government as pieced together by the American Founders. 

The alarm is particularly acute in relation to one man, Chief Justice John Roberts, who seems bent on ensuring that the Supreme Court, as currently constituted, never tilts toward conservatism with any consistency. He was nominated for his current position by President George W. Bush because of his conservative record, but it isn’t clear—and has never been clear, when we look back on it—precisely what he stands for, aside from his own extravagant ambition. 

Joan Biskupic, in her biography, The Chief: The Life and Turbulent Times of Chief Justice John Roberts, recounts that Roberts, as he was angling for a seat on the U.S. Court of Appeals for the D.C. circuit, wished to remain aloof from the conservative Federalist Society, even as he accepted the Federalists’ endorsement for the position. The endorsement was helpful in getting him considered for the court nomination by the second President Bush in 2005, but it could have proved problematic at confirmation time. Roberts’s political conundrum was explored by The Washington Post’s Charles Lane at the time of his nomination to the appeals court. 

“Roberts burnished his legal image carefully,” wrote Lane. “In conservative circles, membership in or association with the [Federalist] society has become a badge of ideological and political reliability….But the society’s alignment with conservative GOP politics and public policy makes Roberts’s relationship with the organization a potentially sensitive point for his confirmation because many Democrats regard the organization with suspicion.”  

So he sought to fuzz up the matter, even to the point of being “irked” when a Post business reporter identified him as a Federalist member. He asked for a correction, though he had attended society meetings regularly and had cultivated an ideological alignment with the organization for years. Thus do we see a man seeking to obscure his true convictions, whatever they may have been, in an elaborate finesse. Nothing particularly unusual about this in the annals of Washington politics. What’s alarming with regard to Roberts, however, is that he’s still doing it now as Chief Justice of the United States—and doing it in ways that reveal an airy disregard for some of the fundamentals of the American system. In the DACA case, a clear presidential violation of the U.S. Constitution doesn’t seem to bother him in the least. 

At issue in the DACA case, DHS v. University of California, was whether Trump could employ his executive authority to reverse previous executive actions by Obama to extend a kind of immigration reprieve to so-called Dreamers who were brought to the United States illegally as children, through no fault of their own. There is widespread support throughout the country, including within the Trump administration, for extending some kind of legal status for the Dreamers. But the question that emanated from Obama’s action was whether the president could constitutionally issue such an order on his own, thus bypassing Congress. The answer clearly is no.

Obama himself acknowledged that constitutional reality on numerous occasions before he decided to take the action anyway. Under pressure from his liberal supporters to wave his executive wand over the Dreamers, he repeatedly refused on the basis of his not having the authority to do so. “I am not king. I can’t do these things just by myself,” he said in 2010. In March 2011, he added that with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” Two months later he added that he couldn’t “just bypass Congress and change the [immigration] law myself….That’s not how democracy works.” 

Even after Obama reversed himself on the constitutionality question in 2012, no one ever disputed in any serious way the reality that federal immigration laws, enacted by Congress, don’t confer upon the president any authority to suspend execution of those laws. Indeed, Congress had rejected previous efforts to pass new laws enabling such an approach to the DACA issue. 

Then the judiciary gave further clarity to the matter when Obama sought to follow up his 2012 DACA actions with a 2014 executive initiative designed to give an administrative amnesty, along with some federal benefits, to certain parents of Dreamers—up to 4.3 million illegal immigrants. In the same series of actions, Obama also initiated a substantial expansion of DACA

The courts struck down both. After Texas and 25 other states sued the administration over this second overreach, the Fifth Circuit Court of Appeals upheld a nationwide injunction against it. The president’s action, said the court, “does not transform presence [of illegals] deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” 

The Supreme Court subsequently affirmed the Fifth Circuit ruling and the injunction—as well as the well-established principle that Congress has full constitutional authority over immigration law. The president must bow to that. Obama was right the first time. 

Based on those rulings, and an opinion by then-Attorney General Jeff Sessions that the rulings demonstrated that DACA also was illegal, President Trump in June 2017 exercised his executive authority to terminate Obama’s DACA policy. In other words, he used his executive authority to reverse an unconstitutional executive action by his predecessor.

He was stymied by the Court. And the man who threw the wrench into it was Roberts, who joined the four liberal justices and wrote the majority opinion. Studiously avoiding the constitutional issues involved (a Roberts hallmark, it increasingly seems), he argued that the problem was that the Trump administration hadn’t properly followed the niceties of federal laws requiring certain rule-making procedures, with notice and comment-period requirements. Never mind that the Obama administration hadn’t followed any such procedures either in promulgating its previous unconstitutional rule-making. 

This is astounding. Justice Clarence Thomas, in a spirited dissent joined in part by Justices Samuel Alito and Neil Gorsuch, called the majority decision “mystifying” in that DACA was “unlawful from the start, and that alone is sufficient to justify its termination.” He also took issue with Roberts’s quibbling assault on a Justice Department memo that sought to justify Trump’s actions based on the DACA illegality. Thomas faulted the Roberts ruling for requiring the Trump administration to “overlook DACA’s obvious deficiencies and provide additional policy reason and justifications before restoring the rule of law.” This, he added, “will hamstring all future agency attempts to undo actions that exceed statutory authority.”

As The Wall Street Journal noted, this is an “invitation for executive mischief, especially by Presidents at the end of their terms. They’ll issue orders that will invite years of legal challenge if the next president reverses them.” 

We know why the four liberal justices jumped on Roberts’s reasoning as their vehicle for retaining DACA even in the face of its clear unconstitutionality. Based on years of judicial activism, it seems clear that they don’t care about such things; it’s the outcome that animates them. But what was Roberts’s motivation? Difficult to say, except that he seems to delight in making mischief through jesuitical tangents seemingly designed to avoid getting to the heart of the constitutional issues brought before his court.  

There are enough instances of this kind of judicial review to call into question what Roberts actually believes in. His first dramatic tilt came in his famous 2012 actions in the case involving Obama’s Affordable Care Act, in which Roberts accepted the unconstitutionality of the act’s “individual mandate” under the Constitution’s Commerce Clause but justified it, through contortions of logic, as a tax. 

As Biskupic writes in her biography, “Some conservatives believed he was not voting his true sentiment, but trying to shore up his reputation and institutional legacy.” 

Then there was Roberts’s bizarre majority opinion in last year’s case involving the administration’s desire to ask a citizenship question in the census. While acknowledging that the executive branch has broad discretion on what questions to ask, Roberts declared that Commerce Secretary Wilbur Ross’s rationale for wanting the question “appears to be contrived.” Because of timing pressures, the ruling effectively thwarted the administration’s interest without actually addressing the merits of the case; and it did so by peering into Ross’s head and purporting to discern what he was thinking. When laws are assessed based on that kind of rationale, the concept of “a nation of laws” is in serious danger. 

In the current court session, Roberts also orchestrated a 6-3 decision stretching the language of the 1964 Civil Rights Act to include under the law’s protections sexual orientation and gender identity, notwithstanding that Congress had specifically rejected such actions. The Court, with Roberts and Justice Neil Gorsuch joining the liberals, essentially amended the statute from the bench, something Roberts had repeatedly criticized during his Senate confirmation proceedings. 

But it is the DACA case that truly reveals Roberts’s willingness to tinker with the law and trifle with the Constitution to serve his institutional ends, whatever they may be. His actions left in place an unconstitutional executive-branch action by throwing up artificial roadblocks against a constitutional effort to undo that unconstitutional action. 

Back when Roberts engineered the Affordable Care Act decision, The Wall Street Journal perceived what was emerging on the Court. “One thing is clear,” said the paper. “This was a one-man show, and that man is John Roberts.” Today that perception looks more and more like the central reality of the Supreme Court’s internal dynamics. That isn’t good news for conservatives. 

Robert W. Merry, former Wall Street Journal Washington correspondent and Congressional Quarterly CEO, is the author most recently of President McKinley: Architect of the American Century (Simon & Schuster).

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