What Is Up With John Roberts?

AP Photo/J. Scott Applewhite


This Supreme Court term, there were six important cases of note.  Three of them have been decided and all three were, to paraphrase Trump, a kick in the stomach to conservatives.  In all the cases, Chief Justice John Roberts was in the majority.  The first case decided was the gun control case out of New York City.  The Court avoided the ultimate issue by essentially declaring the case moot.  During the oral argument, the lawyer for the city argued that point insisting that the provision in the city ordinance had been changed in the interim and that the petitioners did not have “standing.”  Nevertheless, the Court proceeded as if it was a live controversy and handed down a 6-3 per curiam decision returning the case to the lower court- the Second Circuit Court of Appeals- by stating there was no reason for injunctive relief since the ordinance had been amended.

But as the dissenters in that opinion noted, the Supreme Court avoided the larger issue- namely, the Second Amendment rights which the city violated originally.  Alito, Thomas and Gorsuch were the dissenters.  Roberts may have avoided the main concerns of the petitioners in this case and this underscores his tendency to avoid Second Amendment cases like he avoids the coronavirus.  There were several such cases pending before the Court that had been relisted and eventually dismissed.  Usually when a case is relisted for a future conference when cases are considered, it is because there may be a pending case heard by the Court yet undecided that could affect those relisted cases.  One can surmise that Roberts used the New York case- which in the end was really not a case- to dismiss the relisted cases and thus avoid a Second Amendment case in the next term.  Alito and Thomas are correct: they can keep avoiding these cases, but they will eventually land before the Court as the Left keeps pushing the boundaries on restrictions on Second Amendment rights.

The other two cases decided thus far are the gay employment discrimination cases, namely the Bostock decision, and the DACA cases, which were actually several consolidated cases.  In the former, the decision, 6-3 authored by Gorsuch, strained the bounds of credibility and it was left to Kavanaugh, in his dissent, to point out some inconsistencies while Alito’s dissent also pointed out some absurdities in the Court’s reasoning.  Being the senior judge in the majority, Roberts obviously assigned the opinion to Gorsuch and, in effect, hid behind the robes of Gorsuch.   In the 5-4 DACA case decision, Roberts actually did pen the majority decision.  Taken in context, although 5-4, it is more a plurality than a majority decision.  For example, Sotomayor agreed in part and disagreed in other parts.  The same goes for Thomas, Alito and Kavanaugh.  

In these types of decisions, it weakens its future use as a precedent by allowing wiggle room for future cases.  But, the overall gist of the decision is that a successor President can undo an Executive Order of his predecessor; they all agreed on that point.  However, in this case the Trump administration did not go about it the right way and for that, Roberts had to invoke the Administrative Procedures Act, just as he basically ignored the more-important Commerce Clause violations with the Obamacare case in a previous term, and decided the case on the Taxing Clause.  It is legal sleight of hand to reach a desired decision, or judicial activism.  And just as there is still Obamacare, the practical effect is there is still DACA.

Of the three remaining cases, two are of interest to conservatives specifically, and one (actually two consolidated) of interest to Trump specifically.  First, there is the Espinoza case involving a Montana tax credit scheme for private education, including parochial education.  The second is a pair of cases involving the “ministerial exception” in employment discrimination cases.  Both tangentially affect religious instruction, the Free Exercise and the Establishment clauses of the First Amendment.  The ones directly affecting Trump are the fate of subpoenas issued by a court and by Congress of Trump’s financial records.

In the subpoena cases, especially the one issued by Congress which they claim is a “fact-finding” mission to guide future legislation, any clear-headed person can tell it is designed to either embarrass or harass Trump personally.  It has nothing to do with future legislation and is all part of a concerted witch hunt effort.  Regardless of the motivation, the last person anyone would want to turn over their financial information, they would be someone like Adam Schiff, Jerrold Nadler, or Maxine Waters.

Given the positions of Roberts, especially in the DACA case which he authored, it becomes difficult to believe that he will side with the administration’s side in any of these cases.  In fact, it looks like Roberts is on an unspoken campaign to somehow prove that he will not be “bullied” by the Trump administration, or by Trump himself.  It appears as if Roberts has some vendetta against Trump that is putting blinders on his main goal- interpreting the law as written, not as he thinks it should be written.

Either that, or someone has something on Roberts…which this writer is starting to believe is the case.