The idea that the Chief Justice of the United States has become fed up with President Trump is being mooted by Los Angeles Times. “The arc of the Supreme Court’s reactions to Trump shows a steady decline in the majority’s willingness to defer to the president and to put up with the administration’s habitual flouting of legal norms,” is how the Times’ Washington bureau chief puts it. He cites decisions of Chief Justice Roberts.
One could, in our view, call it “The Umpire Strikes Back.” That would be a play on the words with which Chief Justice Roberts sketched, during his confirmation hearings, the role he anticipated playing on the court. “I will remember,” he promised, “that it’s my job to call balls and strikes and not to pitch or bat.” It’s become one of the most famous formulations ever offered by a nominee to America’s high bench.
The Chief Justice’s failure to stick with that principle is traced by Los Angeles Times. It cites three decisions for which Chief Justice Roberts wrote the opinion. The first was over Mr. Trump’s so-called travel ban. California and Hawaii, among other states, were opposing the President. Chief Justice Roberts called them out on every pitch, including the claim that the presidential policy was animated by anti-Muslim bigotry.
That was in June 2018. A second marker of what the Times reckons to be the Umpire’s changing view came a year later, when the Nine maneuvered the President into a corner whence he couldn’t have the Census ask whether one was an American citizen. The Chief’s “willingness to defer to executive judgment had clearly begun to wear thin,” said the Times of the Chief’s joining the four liberal justices on a key point.
What was so striking — and, to us, off-putting — about Chief Justice Roberts’ turn in the Census case was that he accepted the President’s authority but cast doubt on the integrity of his explanation for why he used it. The sole reason the administration gave for adding the citizenship question to the Census seemed, the Chief wrote, “contrived.” He added, insultingly, that the justices need not display “naiveté.”
The Times’ veteran Washington bureau chief, David Lauter, seizes — shrewdly, in our view — on this sentence of the Chief Justice: “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.” Mr. Lauter reckons the administration could have taken that “as a plea — or a warning.” Instead, he notes, Mr. Trump “denounced Roberts.”
That’s the prelude to the third marker of the Chief Justice’s shift. It is the ruling this week blocking the President from keeping a signature campaign promise to end a policy President Obama had put through by executive fiat. That is the program known as DACA, for deferred action for childhood arrivals. It was, in our view (if not LATimes’), as if Chief Justice Roberts had thrown off his mask and picked up the bat.
Nor was the DACA ruling the President’s only big defeat this week. It’s just the one written up by the Chief Justice. The court, Mr. Lauter notes, swung against the administration on gun rights, sanctuary cities, and whether the Court or Congress gets to establish the meaning of the word “sex” as it appears in the 1964 Civil Rights Act. So much, in our view, for the court confining itself to balls and strikes.
Then again also, too, there’s the question of how all this is going to go down politically. Will it hurt or help Mr. Trump? We disagree with Mr. Trump on some of his policies (notably immigration). In almost every case he lost, though, he was redeeming campaign promises that the Court seems bent on stymieing. Does it follow that Mr. Trump is the party with which the states that elect the president are going to be unhappy?