Image 01 Image 02 Image 03

What motivates John Roberts lately?

What motivates John Roberts lately?

Behind the “swing”

Last Friday, Professor Jacobson wrote a post entitled “Chief Justice Roberts is the new Swing Vote, or worse,” explaining that:

Roberts…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…

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 [Friday], the Court rejected the stay, with Roberts joining the four liberal justices…

Trump had criticized the San Francisco judge who imposed the original injunction as being an “Obama judge,” and Roberts had replied that there’s no such thing as “Obama judges or Trump judges, Bush judges or Clinton judges,” and that judges are “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

In trying to analyze why Roberts voted on Friday with the liberals to allow the injunction to stay in place for now, one could see his vote as his attempt to defend that San Francisco judge. Perhaps, to Roberts’ way of thinking, had Roberts voted with the conservatives, it would have lent support to the idea that the San Francisco judge had been motivated by “Obama judge” partisanship to make an incorrect ruling.

I believe that there are at least three more things that could have been operating with Roberts in handing down this decision. The first is that most people, especially ambitious people—and that includes SCOTUS justices—are attracted to power. Power is enticing, and increasing one’s own power is always tempting. So what could be more powerful for Roberts than becoming a swing justice? It would mean that a great many huge and important cases would turn on what Roberts thinks.

Secondly, Roberts was nominated by George Bush. What better way for Roberts to prove that he’s no “Bush judge” than to vote with the liberals? So that’s another motivation to do what he did yesterday.

Thirdly, I’ve noticed a tendency in Roberts—long before Trump became president—to vote in the way that is least likely to upset the status quo apple cart. For example, in the case of Obamacare, Roberts found a “creative” way to avoid a bold overturning of a bill that had been passed by Congress. In Friday’s injunction case, the path of least resistance was to let the injunction stand. But when the case about Trump’s asylum policy actually reaches SCOTUS, Roberts could go either way—he might rule with Trump in order to uphold an executive order already issued, or he might rule against Trump in order to support the implementation of the pre-existing (pre-Trump) policy on how asylum is handled.

[Neo is a writer with degrees in law and family therapy, who blogs at the new neo.]


Donations tax deductible
to the full extent allowed by law.


JusticeDelivered | December 24, 2018 at 9:17 pm

What we need is for Trump to appoint another SCOTUS, thereby tempering Roberts influence.

JusticeDelivered | December 24, 2018 at 9:17 pm

What we need is for Trump to appoint another SCOTUS, thereby tempering Roberts influence.

Subotai Bahadur | December 24, 2018 at 9:22 pm

Or it could mean that voting for either faction of the UniParty, and therefore voting at all, no longer has any effect on policy. Republicans will not oppose Democrats in the Legislative branch, desperately creating enough turncoats on any specific issue to make sure Democrats are not defeated and Republican promises to their voters are never carried out. Similarly, regardless of which party names the judges, none of them will issue a ruling to defend the Constitution and the very concept of law from the Left.

Which means that the nature of real politics, how power and authority are allocated, is not as it seems. And that the true nature of real politics must be used by the people if they are to be other than slaves.

Subotai Bahadur

All of those explanations might be true. But there’s also a simpler reason: Roberts is Chief Justice of the Supreme Court, and courts can’t do their job unless people accept their rulings as mostly legitimate, most of the time. It’s only common sense that Roberts would see the court system’s legitimacy as important enough to defend, even if he knows perfectly well that some of the judges are corrupt. It is possible, though I obviously don’t know, that a similarly charitable explanation applies to our erstwhile AG “Sleepy Jeff” Sessions and to FBI Director Christopher Wray. Even Rod Rosenstein might be acting in good faith. It’s not impossible.

    Subotai Bahadur in reply to Dantzig93101. | December 24, 2018 at 10:10 pm

    Which leaves the questions of:

    1) what size fraction of “mostly legitimate” “most of the time” is small enough so that people reach the conclusion that the courts decisions are NOT legitimate based on law and the Constitution?

    2) does blatant efforts to shore up that legitimacy at the cost of what is seen as justice by a growing fraction of the people actually make the system seem more legitimate?

    3) what is the result of enough people believing that the court system is not legitimate?

    4) and what does that lack of belief in the legitimacy of the system do to belief in the legitimacy of the other systems that create and supposedly regulate the legal system?

    If their version of good faith is seen as bad faith towards the people, the consequences will be serious and irrevocable.

    Subotai Bahadur

    Lol it’s Christmas, not April fools day silly

    “Even Rod Rosenstein might be acting in good faith.”


    The ACA decision completely delegitimized the court. There is no going back. The Court will never be looked at the same way by those on the right, and the left has never recognized the legitimacy of ANY of our institutions. They just see power to be grabbed. Leftist justices tell you that straight up when they say they do not base their decisions on the text or intent of laws.

    Roberts has done more damage to the courts than anyone alive because he made it clear the game is rigged, and there is no recourse to be found at the ballot box. No matter what the law says, or who makes the appointment, the left will get its way on far more issues than it should because guys like Roberts worry more about the impression they make than they do the law. Whereas leftist judges do not feel bound by the law at all. For them it is solely what they feel they can get away with.

Could it be that he’s just a doofus?

Optimistically, we can imagine that Roberts saw the partisan attacks on Kavanaugh as an anomaly and not as the way things really are. Even in this view, though, it’s pretty hard to reconcile his bizarrely-naive view that justices are apolitical. By ignoring the horrific, clearly partisan attacks on Kavanaugh, he’s admitting there is a serious problem.

Is he trying to over-compensate? If so, what would prompt him to think that his role on SCOTUS is to falsely reflect the opinion of the Court as other than it really is? He’s taking decisions to “prove” he’s not partisan; isn’t that the very essence of partisan hackery?

    Gremlin1974 in reply to Fuzzy Slippers. | December 25, 2018 at 1:05 pm

    Roberts, imho, has always been more worried about the “legacy” of the court under his leadership than anything else and he will do what is least controversial to keep what he sees as a “positive” legacy, regardless of the constitution and good jurisprudence. The Obamacare decision is proof of that.

There’s something about the grin.

Is there a Canary missing?

The “parties” to which “partisan” pertains, are no longer Democrat and Republican or even liberal and conservative. The new parties are Establishment and anti-Establishment. And, none of the current federal judiciary are anti-Establishment.

What happened here is that the Scotus fucked hearing this case. Now, based solely upon the language of applicable federal law, the Scotus would most likely have had to rule against the EO denying persons, who illegally entered the US, an asylum hearing. What the court did not want to take up was the question of whether a district court had the authority issue an injunction against the federal government which was binding outside the district in which it was issued. Right now any district judge can shut down any action of the federal government everywhere within the territory of the US and even beyond. This is a tremendous amount of power. And, I honestly think that the federal judiciary likes that status quo.

There might be other reasons why Roberts is the new swing vote and there probably are. But, I will not speculate upon them at this time.

Merry Christmas, Y’All.

    Mac45 in reply to Mac45. | December 25, 2018 at 10:55 pm

    I heartily apologize for my language in this post. That should be “feared” hearing this case. I can not even plead a defense of intoxication. It was not intentional, I assure you. Sorry for any offense.

there’s no such thing as “Obama judges or Trump judges, Bush judges or Clinton judges,” and that judges are “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

These statements are extraordinarily fatuous. Either Roberts is just plain stupid, or he’s deliberately being deceptive.

But he’s right, he’s not a Bush judge. He’s turned into an Obama judge.

” enjoining Trump’s new policy on processing asylum claims, which held that people who illegally crossed the border could not apply for asylum…”

If that was truly the issue at hand, I would expect anyone commenting on this site to vote against it, too. That would constitute the executive branch literally rewriting the law.

Last I recall, the issue is considerably more narrow, based on an executive branch determination permitted under the law that allows the executive branch to bar entry to certain types of aliens, limited in time and scope, due to some situation demanding it (like a flood of migrants that cannot be physically coped with).

Even I can see the problem. If Trump had his wall, he could bar those people from crossing. But, illegal immigrants are already “illegal”. If they enter US soil despite his best efforts, “barring” them from entry is moot – they’re already on US soil. Therefore, the statute law for asylum applies. Small wonder Roberts, at absolute minimum, is forcing Trump to go through the scenic route through the lower courts, even if the end result feels absurd.

    tom_swift in reply to JBourque. | December 25, 2018 at 12:35 am

    like a flood of migrants that cannot be physically coped with

    Like, say, because there’s no wall.


      My broader point is that if you erase the emergency/ temporary aspect, the AG Sessions position becomes so obviously illegal and in flagrant violation of statute law, no reasonable person could expect the court to support it. It’s a common trick of the media, one I’m sadly used to. But, I’m also unconvinced this had a serious chance of impressing the courts – they’ll ask, where is the emergency? It is a basic weakness in the Sessions position. Did he just ignore it? I have no idea.

    Ulysses in reply to JBourque. | December 25, 2018 at 8:44 am

    Mr. Chief Justice Can a law that actively encourages criminality stand?

    Hmmm The law as written. So when the Chinese Army crosses our border in mass – each and every one of their soldiers if captured will be able to apply for asylum?

    The Courts have failed to interpret the Statute in light of the following:

    1. Person A deliberately enters illegally without good cause. Persona A could have gone to an Embassy or Border Crossing.
    2. Person A does not have a legitimate asylum claim. The claim is being used as a device to circumvent other immigration laws.
    3. Once in the country the likelihood of Person A every being deported is near zero unless Person A commits a major felony.

      Gremlin1974 in reply to Ulysses. | December 25, 2018 at 1:19 pm

      Which is why entering illegally needs to be made a criminal offense as opposed to a civil offense as it is currently. IMHO, it should be a Felony in and of itself.

    Pasquale Furioso in reply to JBourque. | December 25, 2018 at 8:51 am

    So in ignoring the requirement that asylum seekers apply at legal entry points, the asylum seeker hasn’t invalidated their claim? Is it common practice that anyone failing to follow a statutory procedure is still granted their request? Does that failure to follow statutory procedure also apply to VISA overstay violators? How about failure to appear in court for criminal defendants or traffic violators? Or failure to pay taxes or fines in a timely fashion? You are advocating bad precedent in law.

      Pasquale Furioso: So in ignoring the requirement that asylum seekers apply at legal entry points, the asylum seeker hasn’t invalidated their claim?

      That is contrary to law.

      INA §208: Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section

        regulus arcturus in reply to Zachriel. | December 25, 2018 at 11:36 am


        The president may prohibit entry to any individual or group he wishes, which includes asylum

        Additionally, the Attorney General may remove asylees as deemed necessary, and no judicial review may occur

        (3) Limitation on judicial review
        No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).

          regulus arcturus: The president may prohibit entry to any individual or group he wishes, which includes asylum

          Even if we were to accept your argument concerning the power of the president to refuse entry, the president can’t refuse to accept the asylum application. That would be explicitly contrary to law, and contrary to U.S. treaty obligations. If this isn’t a workable policy, then the Congress needs to change the law.

          Gremlin1974 in reply to regulus arcturus. | December 25, 2018 at 1:13 pm

          @Zachriel and @JBourque are right (now there is something you won’t hear me say every day, lol.)

          The problem is the way the law is written and that takes congress to change. As much as I agree with not allowing illegals to apply for asylum the law says they can.

          That is one of several changes that need to be made just more proof that our immigration laws need to be overhauled.

          Another is that entering illegally needs to be made a criminal offense instead of a civil offense. Personally I think it should be a Felony.

        regulus arcturus in reply to Zachriel. | December 25, 2018 at 1:28 pm


        8 U.S. Code § 1182 supersedes any asylum application.

        Asylum was not designed to be a backdoor to entry requirements, as leftists illegally argue currently.

          regulus arcturus: Asylum was not designed to be a backdoor to entry requirements, as leftists illegally argue currently.

          The Congress specifically addresses the alien who doesn’t enter at a designated port of arrival saying they have the right to apply for asylum. This is also consistent with U.S. treaty obligations.

          regulus arcturus in reply to regulus arcturus. | December 26, 2018 at 8:49 pm

          That is incorrect as well.

          Port of entry qualification is only one condition of several qualifications.

          The president or AG may prohibit entry OR asylum to anyone deemed contrary to US interests, as cited in the above statutes governing entry and asylum.

    Except that both the law and the Constitution give the President that authority.

Whatever motivates john roberts

he’s likely still being blackmailed by whatever they had on him when the ACA “ruling” came down…

regardless, he’s not going to be safe when the hot part of CWII kicks off here one of these days.

    Gremlin1974 in reply to redc1c4. | December 25, 2018 at 1:10 pm

    No one had anything on Roberts, he decided this issue and the ACA issue in a way to avoid major controversy and to preserve what he sees as the positive legacy of the court.

    Roberts is more worried about what history will say about the court under his leadership than he is in objective jurisprudence.

      Arminius in reply to Gremlin1974. | December 25, 2018 at 9:59 pm

      I’m sure you are correct. Which just goes to show the shortsighted stupidity of John Roberts. They’ll notice that he wasn’t interested in objective jurisprudence and that will be his court’s legacy. Which is hardly a positive thing to say. In fact, by abandoning any interest in objective jurisprudence he’s guaranteeing that the legacy he leaves behind will by that he was a trashy opportunist only interested in what the headlines said about him.

      If he truly wanted to leave a positive legacy he’d stick like glue to objective jurisprudence so that his legacy would not be that of a black-robed slut, which is where his legacy is headed.

    That ‘seizure’ he had? He probably had it after they showed him the photos.

Rather than trying to figure out whose judge he is, how ’bout getting one that will rule with our Constitution. I know, novel idea.

Another motivation is the receipt of accolades and adoration. Go with the left, you’re a media darling and you get invited to the best parties. Refuse them, you’re a pariah. I believe this is what motivated John McCain. He really liked his media title of “maverick”.

Supposedly conservative justices go left so quickly that either their entire judicial history is a sham, or they’re easily corrupted by this kind of devil’s bargain. I predict Kavanaugh will do the same. The purpose of his trial by fraud wasn’t just to keep him off the bench. Failing that, it’s to condition his behavior while on the bench.

The solution to Roberts is for Trump to appoint a totally conservative justice that has no history of “Moderation”. It looks like anyone from the North East/Harvard-Yale has the potential of becoming a “Swiger”. Maybe it’s in their DNA?

People keep mentioning Roberts ACA vote and question it. Here it was called “creative” in as a pejorative way as that could be used. While I’m hardly a legal scholar I was very interested in this case as it progressed and I mentioned this possibility a year ahead of time. So much was made of the unconstitutional “fine” that, at least in the press and internet, that seemed to assure the ACA would be struck down. But there was clear precedent that it was function that the court should consider not what its called. That a tax would be legal if applied in the same way meant that so could the penalty. I have always been against the ACA but was not surprised by the decision based on how it had been publicly framed in discussions proceeding the case. I still believe Roberts has gotten a bad rap for this ruling. Most of the criticisms of this case tend to ignore the actual law for what people wanted. It’s disappointing

Only a country which has allowed lawyers to tie it up in its own underwear would have difficulty with this.

The solution is obvious. All requests for asylum should be considered. This does not mean that all, or even most, should be granted.

1. Let anyone anywhere apply for asylum at any time.

2. The decision to grant it or not should consider the totality of circumstances.

3. Reject all applications from wannabe refugees who have already demonstrated a cavalier attitude toward American law and the country’s integrity, on the grounds that they have already shown themselves to be unsuitable “citizen” material. Sneak into the country, then apply for asylum once caught? That’s an easy one, so handle it like it’s an easy one.

4. Now the functionally important part—this rejection should be immediate. None of this business of letting them roam at large until a fancy hearing can take place. Easy questions have easy answers, and easy answers should be quick ones.

If the Chief Justice can’t separate his emotion and motivations when ruling on constitutional matters he should be recusing himself.

Or maybe some of those illegal uses of the NSA spy data base were made to get dirt on “people in power” and Roberts has to vote as instructed (as in the Obama Care case) or have dirty laundry he would prefer to keep private, aired in public. Since Obama came to power Roberts has made several decisions not typical of his history. It just seems odd that Obama gets in office and Roberts has a philosophical change of heart on critical issues. His Obamacare opinion defies both common sense and the clear letter of the law. I opine that Roberts is no longer his own man.