On Friday, Chief Justice John Roberts joined the liberal justices in a 5–4 decision to maintain the block on President Donald Trump’s new restrictions on asylum.
Trump issued a proclamation in November prohibiting refugees from seeking asylum if they entered the United States without authorization. U.S. District Judge Jon S. Tigar swiftly halted the policy, prompting Trump to dismiss him as an “Obama judge.” Chief Justice John Roberts then issued a rare rejoinder, telling the AP: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Then, on Dec. 10, the 9th U.S. Circuit Court of Appeals upheld Tigar’s nationwide freeze on the new rule. In an opinion written by the conservative Judge Jay Bybee, a Bush appointee, the court explained that a federal statute expressly guarantees immigrants the right to apply for asylum—whether or not they come into the country lawfully. Indeed, the law was meant to implement a treaty which the U.S. had ratified that directed signatories not to “impose penalties [on refugees] on account of their illegal entry or presence.” Trump, the court held, cannot revoke Congress’ decision to extend asylum rights to unauthorized immigrants.
The Department of Justice appealed to the Supreme Court, urging the justices to reverse the 9th Circuit and permit the asylum rule to take effect. On Friday, Roberts and the liberals refused to do so, ensuring that Tigar’s injunction will remain in place. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh noted their dissent.
It may be tempting to speculate that Roberts voted against the Trump administration to drive home his point about the judiciary’s independence, or as a jab at the president. But that is almost certainly not the case. It is much more likely that the chief justice simply reviewed the case and recognized that there is no plausible argument for the new rule’s legality. The text of the statute is clear as can be: “Any alien … who arrives in the United States … may apply for asylum”—even if they did not enter through “a designated port of arrival.” Roberts probably read the law and recognized that this is an easy case, since Trump’s proclamation directly contravenes the will of Congress.
Unfortunately, Kavanaugh sees things differently. The newest justice appears to have suspended his judgment and reading skills to run interference for the Trump administration, thereby ending his streak of moderation. For two months, Kavanaugh appeared to have joined Roberts and the liberals in a series of decisions against the DOJ. The coalition swatted down an effort to stymie the census citizenship case as well as a climate change lawsuit, and declined to hear a case that involves Medicaid reimbursements for Planned Parenthood patients.
Kavanaugh seemed to be keeping his head low in the wake of his toxic confirmation hearings, and perhaps persuading Roberts that he, too, is a moderate conservative eager for compromise.
That ends now. The Trump administration’s asylum policy is flagrantly unlawful any way you slice it, and it is deeply disturbing that Kavanaugh stood up for this indefensible rule. His vote on Friday should smash any remaining hope that the new justice is “more of a centrist than some of his critics,” as GOP Sen. Susan Collins insisted. He is exactly the judge Trump wanted him to be.
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