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.]
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