WASHINGTON – In two major decisions this week on LGBT rights and immigration, the conservative-leaning Supreme Court handed President Donald Trump somewhat surprising defeats.
“Do you get the impression that the Supreme Court doesn’t like me?” Trump tweeted shortly after the court ruled Thursday that his administration hadn't acted properly in ending the 8-year-old Deferred Action for Childhood Arrivals program, which protects some 650,000 young immigrants from deportation.
Trump was plowing familiar ground, turning a court decision with which he disagreed into a personal rebuke. For Chief Justice John Roberts, who sided with the court’s liberals in ruling against Trump in both cases, the outcomes and the conservative outcry that accompanied them may help insulate the court from accusations typically made from the left that the highest court in the land is reflexively friendly to partisan Republican and ideologically conservative interests. Further countering that perception: One of the justices ruling against Trump on Monday was one of his two appointees.
Over Trump's 3 1/2 years in office, Roberts has been both a vote for the administration and against it, his votes often decisive on a court with four more liberal justices and four more conservative. Those votes have helped him underscore his frequently repeated mantra that the judiciary is different from and independent of the political branches of government.
No one would mistake Roberts for a liberal in nearly 15 years as chief justice, nominated by Republican President George W. Bush. But since his vote in 2012 to uphold the heart of President Barack Obama's health care overhaul, Roberts has injected at least a bit of doubt about where he will come down in some cases.
In 2018, Roberts and the court's conservatives upheld the president's travel ban. Last year, his vote with the court's liberals kept the administration from putting a controversial citizenship question on the 2020 census.
If the president is steaming at the court's decisions this week, however, he may still in short order be singing the justices' praises. The court has a series of high-profile decisions important to the president left to release before the justices go on their summer break. They include fights over the president's tax returns,abortion,the president's power to fire the head of an independent agency and Trump administration changes to the Affordable Care Act. Some or all of them could still be big wins.
For now, though, the president is voicing his displeasure with Roberts and the court, suggesting he will once again make the high court a campaign issue.
"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!" he tweeted Thursday.
Other Republicans directly criticized Roberts. Texas Sen. Ten Cruz accused him of “playing games with the court to achieve the policy outcomes he desires,” and Arkansas Sen. Tom Cotton said in a statement: “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.”
During the 2016 election, Trump told Republican voters that, even if they didn't like him personally, they should vote for him to ensure conservative appointments to the court. His two nominees, Justice Neil Gorsuch and Justice Brett Kavanaugh, have generally been reliably conservative votes. But the two Trump nominees wound up on opposite sides of Monday's 6-3 opinion that a landmark civil rights law protects gay, lesbian and transgender people from discrimination in employment. Gorsuch wrote the decision for himself, Roberts and the court's liberals.
Roberts, for his part, has tried to emphasize that the justices are not “politicians in robes” and that they are different from the lawmakers in the U.S. Capitol across the street from the Supreme Court. After Trump in 2018 went after a judge who ruled against his migrant asylum order, calling him an “Obama judge," Roberts issued an extraordinary statement rebuking the president.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts said in response to an inquiry from The Associated Press.
Elizabeth Wydra, president of the liberal Constitutional Accountability Center, said Roberts' votes this week shouldn't be seen as a shift.
“We aren’t seeing the emergence of Chief Justice John Roberts as a liberal,” Wydra said.
The Trump administration's actions have been so “repeatedly outlandish” that Roberts “frankly has no choice but to call them out on it," she said. Roberts sees himself as a “steward for the institutional integrity of the court” and “he can’t really in good faith protect the integrity of court without ruling against Trump from time to time,” she said.
Even when Roberts has ruled against the administration, however, he has in some sense not gone very far. On Thursday, for example, the court ruled not that the Trump administration couldn't end DACA but simply that they'd gone about doing so in an improper way. The ruling in the 2019 census case was similar.
Curt Levey, who heads the conservative Committee for Justice, said Monday's decision in the LGBT case firmly establishes Roberts as “a moderate at best.” One silver lining of the fact that both Gorsuch and Roberts joined the liberals, he said, is that it works against Democrats who might in the future claim "this is a right-wing court.”