July 11, 2020

Swing Vote of the Court

IMMEDIATE RELEASE 18 June 2020
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
The swing vote of the Court
By Douglas Cohn and Eleanor Clift
          WASHINGTON – Chief Justice John Roberts is the undisputed swing vote on the Supreme Court, following in the footsteps of Justice Sandra Day O’Connor (except for her Bush v. Gore ruling, the most centrist swing vote) and Justice Anthony Kennedy (a less reliable swing vote). Roberts did not effortlessly move into the role, and he is less a centrist than those predecessors. However, he did move and is moving, bound as he is to three fundamentals: the U.S. Constitution, the legacy of the Supreme Court, and the full realization and understanding that the Court is a separate and equal branch of the government that must act as a counterweight, when necessary, to the executive and/or legislative branches.
          In the event, it did not take long for President Trump to lash out at the Supreme Court for two current decisions he called “shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.” He then tried to turn the decisions into political paydirt, declaring, “We need more justices or we will lose our 2nd Amendment & everything else. Vote Trump 2020!”
          His swiftly negative response to the Court’s 5-to-4 ruling against the administration’s attempt to end the DACA (Dreamers) program (Deferred Action for Childhood Arrivals) provided a sharp contrast to Trump’s acceptance three days earlier of the Court’s 7-to-2 ruling upholding constitutional protections in employment for LGBTQ individuals. Trump called that decision “very powerful” but said, “they’ve ruled and we live with their decision. That’s what it’s all about.”
          Chief Justice Roberts was the critical swing vote in both of these landmark rulings, a role he has increasingly filled on the Court he leads. Trump has tangled with Roberts before, calling him “an absolute disaster” and “a nightmare for conservatives” for providing the deciding vote to uphold Obamacare in 2012.
          It is clear from the way Roberts ruled this week that he does not want the Supreme Court to go down in history as a partisan institution that rubberstamps whatever Trump wants. Like the generals who are speaking out against Trump’s use of military force to clear peaceful protestors out of the Capital’s Lafayette Square, Roberts took an oath to the U.S. Constitution and not to any party or president.
          He also cares about the legacy of the Court, a legacy that will bear his name as its chief justice. On these two decisions, one having to do with gay, lesbian, and transgender people, the other weighing the futures of 800,000 young people illegally brought to this country who call America home.
          Roberts’ jurisprudence is firmly rooted in the Constitution, but he also knows how to read the mood of the country. Upholding employment protections for LGBTQ people who won the right to marry from the Supreme Court in 2015 is a no-brainer. The country’s attitudes have moved dramatically on this issue and it makes no sense to say people can marry but that the next day, their employer can fire them.
          Roberts was able to persuade Trump-appointed Justice Neil Gorsuch to join him in the decision, narrowing the gulf between the Court’s conservatives and liberals. Roberts is acutely aware of the fact that three of the Court’s conservatives, including himself, were appointed by Republican presidents (George W. Bush and Trump) who did not win the popular vote.
          Roberts was not able to bring along any of the other conservatives for the DACA ruling, and that will earn him condemnation from the Right for being the lone defector. He could have gone either way on this ruling, and his reasoning for deciding the way he did stayed clear of ideology. He says the administration did not do their homework, presenting an argument that was “arbitrary and capricious” and not based on the law.
          He did not say the administration could not end DACA. Instead, he sent it back to the Department of Homeland Security (DHS) if they want to try again, much the way Trump’s Muslim ban went through three iterations before a version of it was upheld in a 5-to-4 vote in June 2018.
          It is not clear what Trump will do in the time remaining before the election. What we do know is that we still have a Supreme Court as an active counterweight against a president who might otherwise believe he can act without restraint, and without consequences, in his determined quest for a second term.
 
          Douglas Cohn’s latest books are World War 4: Nine Scenarios (endorsed by seven flag officers) and The President’s First Year: The Only School for Presidents Is the Presidency.
          Twitter:  @douglas_cohn
          © 2020 U.S. News Syndicate, Inc.
          Distributed by U.S. News Syndicate, Inc.
END WASHINGTON MERRY-GO-ROUND

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