Political Cases Test Roberts’s Efforts to Keep the Supreme Court Above It All


(Bloomberg) -- U.S. Chief Justice John Roberts has often said the Supreme Court isn’t a partisan institution. Confronted with two of the court’s most explicitly political cases in years, he tried to prove it.

The Republican-appointed Roberts underscored his independence from Donald Trump Thursday by joining the court’s four liberals to at least delay the president’s bid to put a citizenship question on the 2020 census.

And in a case that could have broader implications, Roberts and his four conservative colleagues ruled that lawmakers are free to draw voting maps to their own party’s political advantage without interference from federal courts.

Political Cases Test Roberts’s Efforts to Keep the Supreme Court Above It All

“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions,” Roberts wrote for the court.

Together, the last rulings of the court’s nine-month term underscored Roberts’s singular role: a conservative who is also the court’s pivotal vote and staunchest protector of what he sees as its institutional reputation.

Roberts will be tested again in the nine-month term that starts in October. The court on Friday agreed to hear Trump’s bid to end deportation protections for hundreds of thousands of young undocumented immigrants who came to the U.S. as children. The president is maintaining a hard line on immigration heading into his re-election campaign, over strenuous objections from Democrats.

The court on Friday steered clear of the fractious abortion debate, refusing to consider Alabama’s effort to ban the most common method used for women in their second trimester of pregnancy.

Roberts’ vote in the census case averted the possibility of two 5-4 victories for the court’s Republican appointees.

It also conjured up memories of his decisive vote in the 2012 ruling that upheld Obamacare. In both cases, Roberts agreed with the conservative wing on a number of legal points but to a large degree joined his liberal colleagues on the bottom line.

Opponents contend that the citizenship question would reduce participation in the survey and that administration officials hid their true aim of boosting Republican and white voters. Commerce Secretary Wilbur Ross said he was responding to a Justice Department letter seeking help with enforcement of the Voting Rights Act, which protects minority voters.

‘Contrived’ Rationale

Roberts said Ross’s stated rationale was “contrived.” The chief justice pointed to evidence that Ross made his decision long before receiving the Justice Department request, and that Ross actually solicited the request by speaking with then-Attorney General Jeff Sessions.

“Altogether, the evidence tells a story that does not match the explanation the secretary gave for his decision,” said Roberts, a 2005 appointee of President George W. Bush.

The decision sets up a race against the clock for the Commerce Department, which houses the Census Bureau, to put forward a justification that can pass legal muster.

Trump tweeted that he’s “asked the lawyers if they can delay the Census, no matter how long.” He said it “seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020.”

The U.S. Constitution requires a census every 10 years, and census day is set by federal law as April 1, so it’s unlikely the administration would be able to delay the survey without congressional agreement.

The administration has said the 2020 census questionnaire needed to be ready for printing by June 30; those challenging the citizenship question had said it could be finalized as late as Oct. 31.

Any new effort to include the question is sure to face a legal fight that under normal circumstances would take months and land back at the Supreme Court.

‘Intensely Partisan’

The partisan gerrymandering ruling was two terms in the making for Roberts. When a less conservative court heard arguments in 2017 in a similar case, Roberts worried aloud about how the court would be perceived if judges started refereeing map-drawing disputes between the two major parties.

“We will have to decide in every case whether the Democrats win or the Republicans win,” Roberts said.

He touched on that theme in his majority opinion Thursday.

”The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life,” Roberts wrote. “That intervention would be unlimited in scope and duration -- it would recur over and over again around the country with each new round of districting, for state as well as federal representatives.”

Political Cases Test Roberts’s Efforts to Keep the Supreme Court Above It All

Critics say gerrymandered districts undermine democracy, letting representatives choose their voters, rather than the other way around. Dissenting Justice Elena Kagan said the court had abdicated its duty to protect the “most fundamental” constitutional right citizens have, the right to participate equally in the political process.

“Of all times to abandon the court’s duty to declare the law, this was not the one,” Kagan wrote for herself and the other three Democratic appointees. “The practices challenged in these cases imperil our system of government.”

In a narrow sense, the ruling gave each political party a victory. In one of the two cases before it, the court upheld a North Carolina congressional map that Republicans drew with the explicit aim of creating 10 Republican seats and three Democratic seats.

In the second case, the justices backed a congressional district in Maryland drawn by Democrats to oust a Republican incumbent.

‘Trump Judges’

More broadly, though, the ruling is likely to bolster Republican prospects in the 2020 election. Republicans are currently the more frequent beneficiaries of gerrymanders because their electoral success in 2010 let them draw many of the current maps.

The ruling will also shape the next round of map-drawing, which will take place around the country after the 2020 census.

The decisions capped a term in which Roberts pushed back against Trump’s characterization of a jurist as an “Obama judge.”

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice said in a statement in November.

“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” he added. “That independent judiciary is something we should all be thankful for.”

©2019 Bloomberg L.P.

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