This is an ominous sign.

Chief Justice Roberts has been sensitive to political criticism of the Supreme Court.

It was widely reported in 2012 that Roberts succumbed to a public pressure campaign from Obama and Democrats that the Court would lose its legitimacy if it overturned Obamacare. Roberts reportedly changed his vote to uphold the Obamacare mandate as a tax, to the fury of the four conservative Justices who wrote a dissent that sounded like it had once been the majority opinion.

Roberts also saw fit to make a public pronouncement after Trump criticized a San Francisco federal judge for a decision enjoining Trump’s new policy on processing asylum claims, which held that people who illegally crossed the border could not apply for asylum. After Trump referred to the Judge as an Obama Judge, Roberts issued this statement to AP:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice Roberts told the Associated Press.

“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

The injunction against the new asylum rules was upheld by the 9th Circuit, and the government sought an emergency stay. In a 5-4 Order released today, the Court rejected the stay, with Roberts joining the four liberal justices:

The application for stay presented to Justice Kagan and by her referred to the Court is denied.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application for stay.
As an aside, Justice Ginsburg voted against the stay from the hospital, where she had a cancerous growth removed from her lung. She is determined to stay on the court until Trump no longer is president and can’t name her replacement.

The issue before the court was not only the correctness of the lower court ruling, but the use of a nationwide injunction by a district court judge. That practice has become commonplace in the age of Trump, where any district court judge anywhere can issue a nationwide injunction. That gives the legal Resistance to Trump almost endless possibilities. In the Travel Order cases, some judges rejected injunctions, but it didn’t matter because Trump opponents only needed to find one judge somewhere to side with them. Trump needed to win all cases, the Resistance needed to win just once.

I was hoping the Court would take up the nationwide injunction scourge in the Travel cases, but it didn’t. It passed up another opportunity in denying the stay in the asylum case, so the legal litigation terrorism will continue in the lower courts unabated.

When Justice Kennedy retired, and was replaced by Brett Kavanaugh after a brutal nomination fight, it was widely predicted that Roberts would step in as the new swing vote. Thats the role Kennedy played for the last decade or more. Many of the most important Supreme Court decisions, particularly on social issues, turned on how Kennedy voted. It was a Court of One.

The decision to side with the liberals on the asylum stay is a bad omen. Like Kennedy, Roberts probably will continue to vote with the conservatives on the mundane (but often important) legal issues. But on the highly political issues, the ones that will get him and the Court skewered by liberal media screaming that the legitimacy of the Court is on the line — well, I don’t have high expectations.

Let’s hope that he doesn’t go full Souter.


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