WASHINGTON – The winners at the Supreme Court this week were the nation's LGBTQ community and undocumented immigrants. The losers were conservatives, led by President Donald Trump.
And the man most responsible for the unexpected turn of events was the leader of the supposedly conservative court – a label that is coming under a little re-examination.
John Roberts, the chief justice of the United States, was in the majority in both cases, along with all four of the court's liberal justices. In delivering the one-two punch to the president and his base, Roberts served notice that he can be either side's punching bag.
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In 2010, he voted with conservatives in Citizens United v. FEC to allow unlimited independent spending by corporations in elections. Liberals are still seething.
Two years later, he voted with liberals to uphold President Barack Obama's Affordable Care Act, which he again saved in 2015. Conservatives have never forgotten.
But while conservatives have more to appreciate in Roberts' overall voting record, he has not been as reliable as they had hoped when he was confirmed as chief justice in 2005, promising to be like an umpire calling balls and strikes. The last 12 months have been perhaps the most obvious case in point.
Last June, the chief justice sided with liberals in striking down the Trump administration's effort to include a question on citizenship in the 2020 census.
"The sole stated reason seems to have been contrived," he said of Commerce Secretary Wilbur Ross' decision. "What was provided here was more of a distraction."
In April, he and Associate Justice Brett Kavanaugh joined the liberal justices in jettisoning a case that gun-rights groups had pursued in order to bolster the Second Amendment. Earlier this month, his court turned away a bevy of other challenges to states' gun restrictions.
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Then this week, Roberts sided with Associate Justice Neil Gorsuch and the liberals in ruling that a federal law banning sex discrimination in the workplace applies to sexual orientation and gender identity. That was followed by Thursday's opinion, which he wrote, saving Obama's Deferred Action for Childhood Arrivals program for undocumented immigrants brought to the United States as children.
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The Department of Homeland Security, Roberts said, "failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients."
'Playing games'
Conservatives in and out of Congress were apoplectic.
"If Justice Roberts wants to be a politician, he should resign and run for office," Sen. Tom Cotton, R-Ark., tweeted.
"The most disappointing week at SCOTUS in years," tweeted Sen. Josh Hawley, R-Mo., who once served Roberts as a law clerk at the high court.
"Judging is not a game. It's not supposed to be a game," Sen. Ted Cruz, R-Texas, intoned on the Senate floor. "But sadly, over recent years more and more, Chief Justice Roberts has been playing games with the court to achieve the policy outcomes he desires."
After 15 years at the court's helm, however, the 65-year-old Roberts is accustomed to the criticism.
“When you live in a politically polarized environment, people tend to see everything in those terms," he told about 2,000 people at Temple Emanu-el in Manhattan last September. "That’s not how we at the court function.”
To label Roberts a closet liberal, on the other hand, would be a colossal mistake.
In 2013, he wrote the 5-4 decision striking down the key section of the Voting Rights Act, casting aside federal oversight of racial discrimination in elections. Five years later, he wrote the 5-4 decision upholding the final version of Trump's travel ban against several majority-Muslim nations. Last year, he wrote the 5-4 ruling that gave state legislatures unfettered freedom to draw partisan election districts.
"He is quite consistent," said former U.S. solicitor general Theodore Olson, a conservative who nevertheless argued on behalf of DACA recipients in the case decided Thursday. "He is very much a rule-of-law individual, and someone who cares a great deal about the process by which legal decisions are being made."
In both the census case and the DACA case, Roberts insisted that the Administrative Procedure Act be followed. For him, that meant federal agencies must be able to explain the reasons for their actions.
"We do not decide whether DACA or its rescission are sound policies," Roberts wrote. "We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action."
Only the nation's 17th chief justice, Roberts is driven like his predecessors by a desire to maintain the court's legitimacy in the eyes of the public.
Translation: too many 5-4 decisions based on ideology – which for the past decade would mean five justices named by Republican presidents besting four chosen by Democrats – will make the court seem like just another political branch of government.
Roberts is aware, no doubt, that the court is the only branch viewed favorably by a majority of Americans. A Marquette Law School poll in October found 57% of those surveyed trusted the Supreme Court the most, compared to 22% for Congress and 21% for the president. He wants to keep it that way.
Thus it was that during Trump's impeachment trial in the Senate, the chief justice presided even-handedly. When it came time to chastise those arguing for or against the president, he chastised both sides.
When Trump criticized an "Obama judge" in 2018 over an immigration ruling, Roberts issued a rare rebuke. "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," he said.
But earlier this year, he gave Senate Minority Leader Chuck Schumer, D-N.Y., the same treatment. After Schumer threatened Gorsuch and Kavanaugh if they vote to limit abortion rights, Roberts said such statements "are not only inappropriate, they are dangerous."
Despite his tangles with the executive and legislative branches, Roberts told his New York City audience last fall that he is not influenced by criticisms from the president or Senate Democrats.
“It does not affect how we do our work. We will continue to decide cases according to the Constitution and laws without fear or favor,” he said. "That’s necessary to avoid the politicization of the court.”
As for the critics, Olson, who has known and worked with Roberts over four decades, summarized an old Spanish proverb:
"It's one thing to speak of bulls," he said. "It's another thing to be in the bullring."
