Issues test high court’s independence
After resounding judicial defeats in the past week on immigration and gay rights, President Trump tweeted Thursday, “Do you get the impression that the Supreme Court doesn’t like me?”
Maybe so, said a Bay Area law professor, and such a view of the president is both a natural and potentially healthy response by the court and its most influential member.
“I think he’s correct, that his repeated insults about the federal judiciary have made the chief justice of the federal judiciary unhappy,” said Rory Little, a professor at UC Hastings College of the Law in San Francisco and a former Justice Department attorney and Supreme Court law clerk.
Chief Justice John Roberts “is the defender of the judicial branch,” Little said. And while Roberts is still part of a fivejustice conservative majority on most issues, he said, his votes
against Trump’s position in this week’s cases — and authorship of Thursday’s 54 ruling blocking the president’s attempt to abolish the DACA program for young undocumented immigrants — show that “the chief justice is unwilling to decide cases on purely political grounds.”
“The court still sees itself as being an independent check on the legislative and executive branches. That’s heartening,” said Joel Paul, another UC Hastings law professor. He said it was also significant that Monday’s 63 ruling prohibiting employment discrimination based on sexual orientation or gender identity, under a 1964 law banning sex discrimination at work, was written by Justice Neil Gorsuch, a Trump appointee, and joined by Roberts.
Gorsuch’s opinion, though opposed by political conservatives, was judicially conservative, Paul said — based entirely on the text of the law and his conclusion that differential treatment of gay, lesbian and transgender employees was discrimination based on their sex. But a conservative law professor saw it differently.
The 1964 law had never been interpreted to apply to LGBTQ employees until now, legislation to broaden it has failed repeatedly, and Gorsuch’s interpretation was “laughable,” said John Eastman of Chapman University in Orange County. He said the court’s recent display of “independence” amounted to “putting forward policy judgments that no one can countermand. That’s judicial tyranny, not judicial independence.”
Among the cases still to be decided in the final weeks of the 201920 term are demands by Congress and New York prosecutors for Trump’s tax returns and other financial records, which the president has withheld. Paul said those rulings could illuminate the justices’ dividing line between law and politics.
“If the president can say, ‘I don’t want you touching my taxes,’ and the courts back off, it would be a very, very troubling sign,” he said.
Trump has lashed out at judges throughout his presidency, denouncing the “socalled judge” who ruled against his travel ban, labeling a U.S.born jurist a biased “Mexican judge” because of his parentage, and regularly attacking the Ninth U.S. Circuit Court of Appeals in San Francisco, which has issued a number of rulings against him.
After Trump berated the “Obama judge” who had blocked his restrictions on political asylum in November 2018, Roberts issued a rare public rebuttal, saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” but simply “an extraordinary group of dedicated judges.”
While that is literally true — judges share the same titles — presidents of both parties seek to appoint sympathetic jurists, particularly to courts that can determine the fate of laws and policies. On the current Supreme Court, five Republican appointees, including Roberts, have sided with conservatives in most, though not all, of their highprofile cases.
Roberts wrote the majority opinions in 54 rulings upholding Trump’s ban on U.S. entry from a group of countries with mostly Muslim majorities in 2018. He also wrote another 2018 ruling declaring that federal courts could not review partisan gerrymandering of state legislative districts, and the 2013 ruling that stripped the Voting Rights Act of its strongest enforcement provision, which had required Justice Department clearance of changes to voting laws or practices in states or counties with a history of racial discrimination.
But Roberts, appointed by President George W. Bush in 2005, has sided with the court’s more liberal justices in some of its most important cases — most notably the 54 ruling in 2012 that upheld nearly all of President Barack Obama’s health care law, which extended insurance coverage to 30 million Americans.
He also wrote the 2019 ruling that blocked Trump from adding a citizenship question to the 2020 census, an addition that would have helped Republicans by reducing census participation, and congressional representation, in states with high immigrant populations. Like Thursday’s ruling on Deferred Action for Childhood Arrivals, the census ruling was legally narrow — Roberts said Trump had the power to include the citizenship question, and to repeal DACA, but had failed to provide the credible explanation required by law.
Trump dropped the citizenship question after the court ruling. He tweeted Friday that he would quickly give the court the explanation it needs to rescind DACA, but no judicial action is likely until after the November election, which will probably determine the fate of the program.
“I think Roberts calls it the way he sees it,” said Erwin Chemerinsky, the law school dean at UC Berkeley and a liberal legal scholar. He said the chief justice “has agreed with the Trump administration more often than not” and that his stance in the recent cases “reaffirms that there really is an independent judiciary.”
But Ilya Shapiro, a constitutional law scholar at the libertarian Cato Institute, said Roberts’ decisions in the census and DACA cases show that “he thinks about politics over the rule of law. His project has always been to try to get the court seen as less political.”
Likewise, said Eastman of
Chapman University, when Roberts preserved the Affordable Care Act by defining its financial penalty for individuals who do not buy insurance as a “tax” Congress was authorized to impose, he “distorts the law to reach a conclusion he thought was necessary to protect the court’s reputation.”
Some of Roberts’ supporters agree that his rulings may reflect a concern for the court’s public standing. A broader question is the role of public opinion, which largely supported this week’s rulings on DACA and gay rights.
Although the justices swear to base their decisions on the law and not the popularity of their actions, the LGBTQ ruling would have been virtually unthinkable in 1964, when federal law first banned job discrimination based on sex. Changes in public attitudes since then made it easier for Gorsuch, Roberts and four of their colleagues to conclude that denial of employment because of sexual orientation or gender identity was an action motivated by sex, since an applicant of a different gender would have been treated differently.
Judges “read the newspapers, watch TV,” said Little of UC Hastings. “I don’t think it changes their opinion much, (but) I think they want to be able to show up at their local Bar Association meeting or basketball games and have friendly associations.”
Eastman accused the court of bowing to “a rarefied, elite version of the New YorkD.C. corridor public opinion that they’re imposing on the rest of country.”