By Kylee Zempel
Knock, knock. Who’s there? Unelected leftist politicians in robes with lifetime tenure. Turns out, the Supreme Court is a joke, and the punchline is Chief Justice John Roberts.
Two high court decisions this week brought that reality into focus, when the George W. Bush-appointed chief sided with leftist justices to say sexual orientation is “sex,” and that the current commander in chief can’t undo unlawful executive action from a past president because of his reasons.
Roberts has quite the track record of leftist judicial activism, however, of which you’ll find a few notable instances below. It’s about time we call a spade a spade — or in this case, call a hack a hack.
1. Supported Unconstitutional Obamacare
From the moment then-President Barack Obama signed into law the infamous Affordable Care Act that colloquially bears his name, the mess of a law was ripe for legal challenges. In 2012, the Supreme Court upheld Obamacare in National Federation of Independent Business v. Sebelius, despite a legitimate challenge based on the Commerce Clause. This faulty 5-4 decision fell solely on the swing vote of Roberts, who wrote the majority opinion.
In it, he dreamed up a “constitutional” justification for the Obamacare monster that rested solely on the tax penalty enforcing the law’s individual mandate. It’s fine, Roberts unreasonably reasoned, because Congress has the power to tax.
Then in 2015, Roberts again saved the Affordable Care Act in King v. Burwell, when he sided with the leftist majority to extend Obamacare tax credits to federal exchanges.
“Maybe ‘Obamacare’ should be renamed ‘Robertscare’ for the justice who went out of his way to save the individual mandate,” wrote Chris Jacobs in The Federalist.
2. Sided with Leftists to Block Louisiana Abortion Law
In February 2019, in the first abortion-related case after President Trump appointed Neil Gorsuch and Brett Kavanaugh to the bench, Roberts joined the leftists in a 5-4 decision to block Louisiana from enforcing an abortion law that would have required abortionists to have admitting privileges at a nearby hospital. This law would have resulted in one remaining doctor legally qualified to perform the barbaric procedure. Opponents of the state law argued it would lead to the destruction of “safe and legal” abortions, an obvious oxymoron.
The majority’s order blocking the law was brief and unsigned, without a written opinion, meaning Roberts and the leftist justices offered no explanation for their decision.
3. Endorsed the Administrative State’s Unchecked Power
The Supreme Court in 2019 ruled unanimously in favor of U.S. Marine Corps veteran James L. Kisor, who had filed a disability claim with the Department of Veterans Affairs but was denied repeatedly after presenting to the VA what he considered “relevant” materials in support of his claim.
Roberts, however, wrote an opinion concurrent with that of the leftist justices, refusing to strike down a 1997 legal doctrine known as Auer deference. Auer defers broad leeway to agencies to interpret their own ambiguous rules, granting the administrative state unchecked power.
4. Denied Census Citizenship Question
After Roberts established that adding a citizenship question to the 2020 census would indeed be constitutional and consistent with the Administrative Procedures Act, the chief justice joined with the leftists on the bench to strike the question because they thought the Trump administration’s reason for asking it was disingenuous. Seriously.
“For the first time ever, the Court invalidates an agency [Commerce Department] action solely because it questions the sincerity of the agency’s otherwise adequate rationale,” wrote Justice Clarence Thomas in dissent. “Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding that he must not be telling the truth.”
5. Censored a GOP Senator to Hide Spygate Info
In blatant disregard for the prerogatives of the U. S. Congress, Roberts censored and consequently undermined Sen. Rand Paul, R-Ky., during the Senate’s partisan Trump impeachment trial.
Paul submitted a question card, which included the name of Eric Ciaramella, whom RealClearInvestigations had identified as the whistleblower central to the impeachment inquiry. After reading the question to himself, Roberts promptly stated, “The presiding officer declines to read the question as submitted.”
The senator’s question did not ID Ciaramella as the whistleblower. In fact, it didn’t even use the term “whistleblower.” Paul later disclosed his anodyne question on Twitter.
Senator @RandPaul sends question to the desk during Impeachment Trial.
Chief Justice Roberts: “The presiding officer declines to read the question as submitted.” pic.twitter.com/CCeB33HnRP
— CSPAN (@cspan) January 30, 2020
Make no mistake, in declining to read Paul’s question, Roberts, an unelected judge, shamelessly censored an elected representative in the performance of his senatorial duties.
6. Pretended Boys Can Be Girls and Girls Can Be Boys
“There is only one word for what the Court” did Monday, said Justice Samuel Alito. “Legislation.”
Along with Trump appointee Gorsuch, Roberts once again joined the leftists on the bench in Bostock v. Clayton County, Georgia, this time to absurdly write “sexual orientation” and “gender identity” into the word “sex” in Title VII of the Civil Rights Act of 1964, which protects against employment discrimination.
While it might please Roberts to tell employers they cannot fire an employee or disqualify an applicant for being gay or transgender, that’s Congress’s job, and Congress has repeatedly declined to pass such a law. Plus, there is simply no way to define “sex” as “sexual orientation.”
As author and professor Robert Gagnon explains, in accordance with the court’s ruling, “a man must be allowed to join a professional women’s sports team if he shows himself to be equal or better than the women on the team, irrespective of whether the man in question identifies as a woman. Denying his employment would be sex discrimination because, if not for his sex, he would be accepted onto the team.”
Roberts and Gorsuch’s judicial activism creates egregious precedent ripe for abuse, or as The Federalist’s Joy Pullmann notes, “the LGBT version of Roe v. Wade.”
7. Upheld Unlawful DACA — Because Reasons
Roberts’ ushering in of politically expedient outcomes continued Thursday, when the Supreme Court blocked the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program, an Obama-era administrative rule unauthorized by Congress that afforded special protections and considerations to illegal immigrants who were smuggled into the United States as children.
Without ruling on the “wisdom” of Obama’s policy, Roberts joined the leftists in a 5-4 decision, writing for the majority that the current Department of Homeland Security’s efforts to eliminate DACA were conducted in an “arbitrary and capricious” manner that violated the Administrative Procedures Act.
Do you get the impression that the Supreme Court doesn’t like me?
— Donald J. Trump (@realDonaldTrump) June 18, 2020
Roberts’ reasoning sent a clear message: Democratic presidents can issue unconstitutional diktats without consequence, but Republican administrations may not reverse those unlawful programs if Roberts doesn’t like their reasons for doing so.
Don’t Hold Your Breath
As the Supreme Court continues to issue rulings with clear and catastrophic implications for religious liberty, free speech, conscience protections, and more, conservatives should relinquish any delusion that Roberts will uphold the rule of law and the integrity of the Constitution.
The ruling on another pivotal abortion case, June Medical v. Gee will be released within the next couple weeks. Given Roberts’ track record, his belief in a nonexistent constitutional “right to privacy” that allows for killing innocent humans, and the fact that he has notably avoided discussing Roe v. Wade, saying during his 2005 confirmation that overturning precedent is a “jolt to the legal system,” conservatives shouldn’t hold their breath that he’ll uphold the constitutional right to life.
Take a hint from the actual conservative justices, who have signaled they don’t trust Roberts either. In order for the Supreme Court to take a case, only four of the nine justices must agree to hear an appeal. Despite the fact that four conservatives besides Roberts occupy the bench and that those conservatives bemoan that “the Second Amendment is a disfavored right in this Court,” they just passed on 10 gun rights-related cases, indicating they don’t trust Roberts with the Second Amendment. That a so-called conservative justice cannot be counted on to uphold the Bill of Rights is telling.
“John Roberts is terrified of the liberal op-ed columnists. They know they hold him captive. They can easily sway his opinions by issuing their ‘warnings’ to him through their columns,” conservative commentator Dan Bongino correctly diagnosed. “He’s not a judge anymore, he’s a politician.”
Roberts is a politician indeed, a politician who consistently makes laws, inconsistently applies the Constitution, and can’t be voted out of office.
By Ilya Shapiro
June 18’s Supreme Court ruling on the Deferred Action for Childhood Arrivals (DACA) program is bad judging on top of bad lawyering. It has good short‐term practical effects but makes policy reform harder in the longer term.
Recall what’s going on here: In 2012, the Department of Homeland Security (DHS) issued a memo creating DACA, which allows people who were brought here illegally as children (the so-called Dreamers) to apply for a renewable “lawful presence” status exempting them from removal, along with work authorizations and other benefits. Two years later, it created a similar program, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
In the 2016 case Texas v. United States, an evenly divided 4-4 court (after Justice Antonin Scalia’s passing) affirmed without opinion an injunction issued against DAPA for violating the Immigration and Nationality Act (INA). In June 2017, based on an opinion of Attorney General Jeff Sessions that DACA was unlawful because its defects mirrored those in DAPA, DHS announced a phase-out of DACA, which has been stuck in the courts ever since.
But Chief Justice John Roberts’s majority opinion didn’t simply adopt the lower courts’ reasoning that DACA was likely lawful and thus the administration couldn’t end it so easily. Instead, he first found that “DACA is more than a non-enforcement policy” of the kind that merits broad deference to the executive branch, but also an affirmative-benefits policy, the rescission of which must follow the niceties of the Administrative Procedure Act (APA). And since both the Fifth Circuit in the DAPA case and Sessions in his memo focused only on the illegality of granting certain benefits, DHS’s action was “arbitrary and capricious,” a no-no in administrative law.
In other words, precisely because nobody challenged executive authority to set removal priorities—going after violent criminals ahead of the Dreamers, say—the Trump administration couldn’t simply claim that all of DACA went beyond presidential power, but had to show its work as to the illegal parts. That technical reason for blocking rescission is debatable, and I think Justice Brett Kavanaugh’s dissent has the better of that argument over Chief Justice Roberts’s majority opinion. I won’t go into all the details, but it’s clear that the administration didn’t do a good job explaining its decision—not that it needed to, points out Kavanaugh—or differentiating the part of DACA that’s legal (“forbearance,” or deprioritizing deportation of certain classes of people) from the part that’s not (granting temporary status and benefits).
The problem is that because DACA is more than non‐enforcement, more than executive or prosecutorial discretion, it goes beyond the powers presidents are given under the INA. Indeed, it goes beyond the powers presidents can be delegated by Congress, because these sorts of actions constitute making rather than enforcing the law.
In other words, the majority says that President Trump issued a new regulation without giving sufficient reasoning and otherwise following the APA. But if that’s the case, then President Obama acted even more egregiously in rewriting the law in the first place.
“DHS created DACA during the Obama administration without any statutory authority and without going through the requisite rulemaking process,” wrote Justice Clarence Thomas in dissent, joined by justices Sam Alito and Neil Gorsuch. “The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope.”
The court could’ve avoided that glaring hole in its administrative‐law reasoning—and any concerns about the “nondelegation doctrine”—by just deferring to the administration’s reasonable if insufficiently explained legal judgment, as Cato’s amicus brief suggested. It didn’t even need to rule on DACA’s legality, but could’ve instead found that what one president established via memo, another can rescind with another memo, for good, bad, or no reason at all.
Instead, it set a precedent that one president’s executive action can’t be rescinded by the next president unless he jumps through hoops that his predecessor didn’t have to. That’s a recipe for ever‐expanding federal and executive power, to the detriment of our constitutional system of government. As Thomas put it, the holding “is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority.”
Finally, as a matter of policy, it’s a good thing that DACA beneficiaries—themselves no strangers to jumping through administrative hoops—will now be allowed to stay here and continue their lives as productive members of society. Good for them and good for the country.
But for how long? Because today’s decision not only goes against the rule of law, it harms the prospects for fixing our broken immigration system. Just as Obama’s imposition of DACA and DAPA poisoned the well for legislative solutions, this ruling removes all pressure from Congress to act.
A decision upholding rescission would’ve forced Congress’s hand. Now we’re left with a mutually antagonistic muddle that benefits nobody but both parties’ Manichean political operatives. As is often the case with a Roberts opinion, an attempt to depoliticize an issue or remove the Supreme Court from the electoral fray only does the opposite.
Sen. Tom Cotton (R-Ark.) criticized Supreme Court Chief Justice John Roberts Wednesday after the court ruled President Trump could not remove the Deferred Action for Childhood Arrivals (DACA) program created by an executive action by former President Obama.
“It cannot be the law that what Barack Obama has unlawfully done, no president may undo,” Cotton said in a statement.
Cotton also condemned Justice Roberts’ actions as “political,” suggesting he should run for office if he wants to participate in political legislation.
“John Roberts again postures as a Solomon who will save our institutions from political controversy and accountability,” said Cotton. “If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court.”
The 5-4 majority, which was released by the Court on Wednesday morning, was written by Chief Justice John Roberts with Justices Alito, Thomas, Kavanaugh, and Gorsuch dissenting.
Cotton’s comments echo Trump’s opinion on the court, who tweeted Wednesday, “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”
These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!
— Donald J. Trump (@realDonaldTrump) June 18, 2020
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