Jurisprudence

What to Make of Chief Justice John Roberts’ Swing Votes This Week

Four Slate staffers discuss why Roberts went with the liberals twice and what to expect next.

 John Roberts frowns.
Chief Justice John Roberts leaves the floor after the Senate acquitted Donald Trump on two articles of impeachment on Feb. 5 Tom Williams/CQ Roll Call via AP

On Thursday, the Supreme Court issued its ruling on DACA—and Chief Justice John Roberts went with the liberals to block Donald Trump’s attempt to rescind the program. This follows Roberts’ vote earlier this week in Bostock, in which he also went with the liberals to confirm that Title VII protections apply to sexual orientation and gender identity. What’s going on with the chief justice? Is this just a repeat of last year? Will he eventual break liberals’ hearts again? Four staff writers convened to discuss.

Mark Joseph Stern: Hello! I am frankly still frazzled from the Supreme Court’s two shockers this week. People: What is going on? Is John Roberts really the new David Souter, as panicky conservatives claim in increasingly deranged tweets?

Dahlia Lithwick: He has never liked Trump. And he knows that he has 25 years left on the bench and is working from the assumption that there is six months of Trumpism left.

Mark Joseph Stern: Is that optimism I hear?

Lili Loofbourow: As a pessimist, my relief at DACA’s nonrescission is tempered by the fact that it can still be rescinded if it isn’t stupidly argued.

Dahlia Lithwick: Yes, both the census case and the DACA case were about dumb moves, done dumbly. I think both Trump and [Attorney General William] Barr treating SCOTUS like its water boy is not landing well with Chief Justice Roberts. If Roberts had a proper partner in the White House, and at the DOJ, all this would have gone fine.

Jeremy Stahl: I agree that a hypothetical President Ted Cruz and Attorney General Ken Paxton would have already had most of the worst things that Trump tried and failed at completed by now.

Mark Joseph Stern: When the census case came down, we summarized Roberts’ ruling as: “Lie better next time.” What’s the upshot here? Be less sloppy next time?

Dahlia Lithwick: Maybe think of it this way: A hypothetical President Ted Cruz and Attorney General Ken Paxton would have done things smarter and cleaner. But Sessions and Barr are sloppy and they want Roberts to clean up their messes. And Roberts is nobody’s lackey.

Lili Loofbourow: Yeah Mark; it’s astounding, really, that Roberts offered a road map—lie better—and they just ignored that warning in the census case.

Jeremy Stahl: That also happened with the travel ban. The second effort was a failure at SCOTUS, but as I recall there were road signs.

Mark Joseph Stern: And yet Roberts sided with Trump on the travel ban, so what’s the difference? If the Justice Department shouts “NATIONAL SECURITY” loud enough, Roberts will cave?

Dahlia Lithwick: I think Roberts (and more so Anthony Kennedy) gave Trump the benefit of the doubt at first.

Lili Loofbourow: Is it possible that Roberts—who values the appearance of nonpartisanship—has just given up on Trump supplying that reasoning? Or, alternatively, are these just bones for the liberals as he prepares to gut abortion rights?

Dahlia Lithwick: That’s why it’s too soon to judge. June Medical might be a far bigger swing.

Lili Loofbourow: Is it possible, too, that he was taking into account the fact that DACA is actually pretty popular? I mean, 54 percent of Republicans support them getting citizenship.

Mark Joseph Stern: I’m really hesitant to hazard a guess in June Medical now. I guessed Roberts would rule the other way on Title VII and DACA. Obviously I was very wrong. But I also guessed that Roberts might vote to strike down the Louisiana abortion law in June Medical, because it, too, is supported by lies and nonsense.

Dahlia Lithwick: Agree, I always thought Roberts was in play in June Medical.

Lili Loofbourow: Could Roberts see this as saving the GOP from itself in an election year?

Jeremy Stahl: I was struck by this passage in the DACA ruling, as flagged by Mark:

As Roberts noted, the program’s recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children.” Abruptly revoking Dreamers’ work permits could “result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years.” In light of these consequences, Duke could have “considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen.”

This is an actual recognition of real-world consequences of his actions! So, I don’t know if he’s saving the GOP from itself, but he’s at least acknowledging that taking into account real-world consequences is not the end of the world for the “balls and strikes” model.

Mark Joseph Stern: The plaintiffs did an excellent job injecting humanitarian concerns into the case by focusing on the reliance interests.

Dahlia Lithwick: At argument, he was fussed about actual deportations. And I don’t think that’s new. He did that in the ACA case too.

Lili Loofbourow: Yeah, I mean, it seems to me like DACA is a mixed bag even among Republicans. Even Trump has waffled on DACA. Do you guys think they’re likely to try again?

Jeremy Stahl: Isn’t the answer obvious, Lili, based on this highly comprehensible tweet?

Waiting until after November would be the sensible thing to do, certainly. That seems to be a different question from whether or not this president is going to take a given action.

Mark Joseph Stern: Let’s turn back to the chief and talk briefly about Bostock. Do you think Roberts genuinely agreed with Gorsuch? Or was he just giving him political cover?

Jeremy Stahl: I think Roberts is building bridges, Kagan-style.

Dahlia Lithwick: I can’t help but wonder if siding with Gorsuch is an effort to distance a bit from Kavanaugh, whose opinions have sometimes been a series of tone-deaf efforts to be likable, particularly his last paragraph in Title VII.

Mark Joseph Stern: You mean when Kavanaugh said, “Congrats on winning, gays, even though you should’ve lost? It’s so cute how you fight for your civil rights?”

Dahlia Lithwick: He wants all the credit for being woke. And today I thought Kavanaugh was being a slightly Trump-y justice, and maybe that’s why Roberts is swatting his nose.

Mark Joseph Stern: I can’t tell if Kavanaugh’s woke moments are trolling or a heartfelt desire to be liked and embraced by liberals.

Dahlia Lithwick: I think the latter.

Mark Joseph Stern: I think the man genuinely craves approval. But wouldn’t you take approval-seeking, faux-woke sad beta Kavanaugh over fire-breathing homophobe alpha Scalia?

Jeremy Stahl: If they’re voting the same, what’s the difference?

Lili Loofbourow: I don’t actually understand the nose rub Roberts gave Kavanaugh. Can anyone translate?

Dahlia Lithwick: He said Kavanaugh is making things up.

Lili Loofbourow: Ohhhh, that’s what “not citing an authority” means. Is Roberts maybe keeping his powder dry for Trump’s taxes?

Mark Joseph Stern: That’s the theory among Twitter’s liberal legal pessimists. I actually think the Trump financial records cases are much easier than the DACA case. I think Roberts could block at least one congressional subpoena but probably side with the NY DA in Vance. Kagan seemed interested in distinguishing between the different subpoenas at oral arguments. That would be a classic Kagan-Roberts compromise. But the DACA case involves very technical questions of administrative law. The Trump finance cases involve basic questions that answered themselves until Trump and Bill Barr made up new rules.

Dahlia Lithwick: If Roberts wants to do something massive on abortion just pausing financial records would make sense.

Mark Joseph Stern: How does the DACA decision play out electorally? This saves Congress and Trump from having to deal with Dreamers, at least for a bit.

Dahlia Lithwick: That’s the interesting part: Trump never really wanted to deport the Dreamers. Now he doesn’t have to, and he can say the court forced his hand, he’s already tweeting as much. So the only issue for November is that he tried, and the court stopped him. That’s just another reason to appoint more judges.

Lili Loofbourow: Yes! He never really wanted to deport them! I feel like Stephen Miller outmaneuvered him into making this a thing. I don’t think it’s a winning issue, and it’s quite possible Roberts knows that even if Trump doesn’t. On the other hand, I think what Trump supporters like about him is how often he wins fights he shouldn’t, and it’s actually pretty bad for him to be checked/balanced, especially at a time when he’s wobbly in the polls.

Dahlia Lithwick: The question is whether voters who picked Trump because of religious liberty have lost confidence that he can deliver.

Mark Joseph Stern: Right, so many conservatives are now saying, “What’s the point in voting Republican if they still appoint justices who vote for LGBTQ rights?”

Dahlia Lithwick: That’s the astounding part: He seated two hard-right judges that were going to lock in the agenda, and they didn’t do it. So promising 20 new names of SCOTUS nominees feels a bit empty.

Jeremy Stahl: They haven’t done part of it in this moment. They could still do plenty more of it in a few more moments.