The Kennedy-ization of John Roberts Continues As the Supreme Court Refuses to Hear Trump Asylum Case

In response to the “migrant” caravans heading from Central America to the friendly climes of the Ninth Circuit (if you think I’m joking, check the route)

CREDIT: CIS.org https://cis.org/Migrant-Caravan-Map

President Trump issued an emergency order that asylum claims would be honored only if immigrants presented themselves at an official “port of entry” to the US. Persons apprehended while in the US illegally would not be afforded the privilege of applying for asylum. Naturally, there was a lawsuit filed challenging the order. Naturally, it was filed in San Francisco. And, naturally, an Obama judge, Jon Tigar, ruled the government was powerless to do anything and, naturally, imposed a nationwide injunction.

The Justice Department appealed the injunction directly to the Supreme Court. Just a short time ago. the Supreme Court declined to hear the case:

BREAKING: The Supreme Court denies the Trump administration’s request to let it enforce its new asylum ban while the case proceeds in court. The decision was 5-4, with Chief Justice Roberts joining his more liberal colleagues in denying DOJ’s stay request. pic.twitter.com/Q4qkxo4nIH

— Chris Geidner (@chrisgeidner) December 21, 2018

NBC News has learned Justice Ruth Bader Ginsburg voted FROM HER HOSPITAL BED to refuse to let the government enforce Pres. Trump's proposed restriction on asylum. The court voted 5-4 to leave a lower court ruling in place that blocks enforcement of the crackdown. @PeteWilliamsNBC

— Gary Grumbach (@GaryGrumbach) December 21, 2018

This is part of what has become a disturbing tendency on the part of Roberts to play to the cheap seats of popular adulation, such as with his self-beclowning statement, when President Trump referred to Tigar as an Obama judge, that there were no political considerations in decisions, only a rigid adherence to the truth.

Via SCOTUSBlog:

Today the Supreme Court turned the government down, in a cursory order that indicated only that the government’s request had been denied. The government would have needed five votes to prevail; the fact that four justices – Thomas, Alito, Gorsuch and Kavanaugh – publicly noted that they would have granted the government’s request presumably means that Roberts joined his four more liberal colleagues in voting to block the government from enforcing its new asylum policy while litigation over its legality plays out. The administration may eventually, as Trump predicted, win in the Supreme Court, but this round went to the challengers, and the eventual fate of the case almost certainly lies in Roberts’ hands.

This may be true, and, in fact, I sort of suspect that Roberts will eventually vote to uphold the administration policy. But here he missed a great opportunity to do two things. First, he could have impressed upon the federal judiciary that their ability to issue nationwide orders is very limited. Second, the government should have been given the benefit of the doubt. As the case progressed, Homeland Security should have been allowed to enforce the order.

Being lionized by editorial pages is heady stuff and Roberts is just as human as the rest of us. We all like to be liked. His job, however, is not to be liked and get invited to all the right parties. His job is to enforce the rule of law and unless the government is egregiously wrong (and need I remind you that Korematsu is still precedent) the respect for the law requires that it be allowed to stay in force while litigation proceeds.