Last year’s Supreme Court term ended with a vivid display of willed gullibility by Chief Justice John Roberts. In Hawaii v. Trump, the “travel ban” case, Roberts announced he would pay no attention to that Islamophobia behind the curtain and instead treat the ban as a “facially neutral policy denying certain foreign nationals the privilege of admission.” This year’s term ended with the same man stating in Department of Commerce v. New York, the census case, that he would not ignore the government’s lies: “We are ‘not required to exhibit a naiveté from which ordinary citizens are free.’”
Donald Trump’s administration, in both of these cases and in ever so many others, lied in its high-profile submissions to various federal courts. Until last week, the response of the Supreme Court’s conservative majority has been to put its fingers in its ears and proclaim, like Miracle Max in The Princess Bride, “Nobody’s hearing nothing!”
The fact that Roberts decided, in at least one case, that he would no longer play rubber-stamp judge is a huge development; much of the future of our democracy depends on whether this was a cosmetic move by a reluctant Trump supporter or a genuine renaissance of Roberts’s judicial conscience.
Movement conservatives certainly found Roberts’s vote—against the administration in its quest to put a citizenship question on the census—alarming. Matt Schlapp, the chair of the American Conservative Union, tweeted, “I’m for impeaching the chief justice for lying to all of us about his support of the Constitution.” The conservative radio host Laura Ingraham called for his resignation. The Fox TV presenter Lou Dobbs suggested that Trump simply refuse to obey the Court’s order.
It’s easy to understand their worry. The administration has repeatedly treated the Court—newly “enhanced” with Trump’s appointees, Justices Neil Gorsuch and Brett Kavanaugh—as an outpost of the executive branch, with the task of taming lower courts. Judicial skepticism might affect the administration’s legal strategy the way water affected the Wicked Witch of the West.
Following the census decision, some SCOTUS nerds thought the opinion was a meaningless feint. The redoubtable Joshua Matz, for instance, suggested that Commerce Secretary Wilbur Ross “need only issue a new memorandum explaining why he wants to include a citizenship question.” But as administrative lawyers know, a new memo requires a new rationale with an “administrative record” to back it up, which requires, in turn, a bit more than a Mylar balloon and a greeting card. The logistics of a new record would be dauntingly difficult.
This doesn’t mean that Trump won’t try to scare one up. The Commerce Department on Tuesday notified counsel that it had given up the fight for the citizenship question. Then on Wednesday, Trump tweeted that the administration was “absolutely going forward” with the question. In a hearing that afternoon, Joseph Hunt, the head of the Justice Department’s Civil Division, admitted uncertainty, but told the judge that the current plan is apparently to go back to the Supreme Court and ask for an order “to simplify and expedite the remaining litigation and provide clarity to the process going forward.”
No one seems to know exactly what will happen next, but it’s possible this case will end up back at the high court. Maryland District Judge George Hazel asked the government to give him a definite answer about its plans by Friday.
So should we believe that Roberts secretly had some cockamamie plan to sneak the question through after pretending to reject it? If so, it was an odd strategy. All he had to do was vote the other way, and the case was over. Instead he issued a stinging rebuke. (Matz did note, “This is the first time an agency action has ever been set aside by the Court as pretextual.”)
I suspect that Roberts voted as he did because at some point he grew tired of being lied to by Solicitor General Noel Francisco and treated contemptuously by President Trump. In the year since Roberts played dead for the travel ban, Trump has blasted a federal judge in California as an “Obama judge” because he blocked new asylum rules. In a move unprecedented in American history, the chief justice directly and publicly reprimand a sitting president: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in an official statement from the Court.
Trump, never one to take a hint, responded with an attack on Roberts by name, insisting that the chief’s cherished ideal of judicial independence is a joke. “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
I understand that Roberts is not a secret moderate. He’s a lifelong conservative with far-reaching legal goals of rolling back civil-rights, economic, and environmental gains. But if the chief justice is sick and tired of being treated like Francisco’s idiot intern, the possible ramifications are huge. If he were to begin taking account of facts—taking this administration at its word when it tells the world of its plans to punish Muslims, torment immigrants, disfranchise its opponents, cripple Congress, and silence its critics—then there may be more times when the chief says, in so many words: Stop lying. Do the job right or give it to someone who can.
That in itself would constitute a major change. As the recent term-end summaries make clear, this Court has not yet attained a stable 5–4 conservative equilibrium. The two moderate justices, Elena Kagan and Stephen Breyer, seem to want to wheel and deal. Both of the new justices are feeling their way. Both have crossed the partisan aisle in surprising ways. Certainly Kavanaugh has adopted the chief as a kind of mentor and model. Though Gorsuch seems to prefer Clarence Thomas, he too may not be locked into that pose. Perhaps this most polarized Court could grow a center.
It’s just possible that Roberts’s vote was not pure pique, but a genuine willingness to question the administration’s lies. Of course, that may be a delusive hope. But “live in hope,” the old Barbadian proverb bids, “though you die in despair.”