Don't Trust John Roberts
Two recent Supreme Court decisions have gone in favor of progress. Don't count on it lasting.
It has been a good week for unexpected victories at the Supreme Court. Donald Trump’s two appointments, Neil Gorsuch and Brett Kavanaugh, have largely failed to deliver results, despite the right’s deepening hold over the judiciary.
On Monday, Gorsuch wrote the majority opinion in a landmark 6-3 decision which found that the Civil Rights Act applied to LGBTQ people in cases of workplace discrimination. He and Chief Justice John Roberts sided with the court’s liberals; Kavanaugh, perhaps the purest representation of Trump’s id on the court, dissented.
Today, the court followed with another, narrower rebuttal of Trump’s policies, shooting down the administration’s attempt to end the Obama-era DACA program. In this decision, split 5-4 largely along ideological lines, both Gorsuch and Kavanaugh voted the way they were supposed to. This time, only Roberts took the lonely stand of swinging the court in favor of the outnumbered liberals.
Donald Trump is furious, in the way that he always is when someone he thought was on his team is perceived as being disloyal. Trump’s laser focus on personal loyalty has been a running theme throughout his presidency: to him, it’s impossible to imagine that someone he thinks he “hired” (Gorsuch, in this circumstance) or who works for him in another respect (anyone in the Republican Party or greater conservative movement, Roberts included) would ever go against his wishes. When they do, he loses his shit.
The framing of this freakout, in explicitly firearms-related terms, is also a direct shot at Roberts, who again was one of the deciding voices in the Court’s refusal to hear a slate of gun-rights cases this past week. Pro-Second Amendment types had been hoping that one of these cases would be precedent-setting and could be used to turn over gun laws. But despite backing the majority opinion in DC vs Heller, Robert's vote on gun control does not appear to be a lock for either side, and both wings seem to have decided to stay out of the fight for now.
What this adds up to is fertile grounds for liberals to do the shit they are always, always desperate to do: hero-worship a “respectable conservative.” This depressing trend is why people slobber all over Mitt Romney and why John McCain continues to be a beloved figure in the country, despite both men’s despicable careers. (It’s also, coincidentally, the reason Meghan McCain is tremendously unpopular, because no matter how hard she tries to steal her dad’s valor, she married the creep who runs the Federalist and routinely shows her lack of honor or basic reasoning skills on broadcast TV.)
It is hugely important that we do not do this to John Roberts. John Roberts is not our friend. With Anthony Kennedy’s departure and the hard-right additions of Gorsuch and Kavanaugh, Roberts finds himself in a unique position. He is both the court’s swing vote and, as chief justice, its leading public face. So, in these decisions, he is playing the long game: preserving what he sees as the integrity of the court while kicking the can down the road to do essentially the same fascism that Trump wants, but in a more thorough, intelligent, and legally sound (lol) manner. The DACA case also gave him an easy way to do this because the Trump administration so thoroughly botched its attempt to revoke the law. From the Washington Post’s coverage of his majority opinion in the DACA ruling:
But, as lower courts had found, Roberts said the administration did not follow procedures required by law, and did not properly weigh how ending the program would affect those who had come to rely on its protections against deportation, and the ability to work legally.
“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote.
He added: “We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
Roberts is saying that he does not particularly care one way or another if children brought to the United States seeking a better life should get to stay or not, just that the DHS needs to check off a few more boxes and maybe offer those kids (now adults, in many cases) some token consolations when it decides to gut the system that allowed them to build a home here. Roberts knows the law, and he knows how to use it. The Trump administration, all too often, does not: the fact that they are largely incompetent morons is the only thing stopping many of their most aggressive and inhumane policies from causing the full brunt of the pain they intend. If you’re looking for a lasting shield against injustice, John Roberts ain’t it.
Please, if you have not, listen to the 5-4 podcast, where they talk specifically about "The Roberts Two-Step" in multiple episodes.