It’s been a little difficult of late to pin down exactly where the Roberts Supreme Court sits on a philosophical scale. It is presumed to be a 5-4 conservative majority, and that presumption has held up under some important rulings. But here and there the high court has rendered decisions, joined variably by Chief Justice John Roberts and President Trump appointees Neil Gorsuch and Brett Kavanaugh, that seem to put it all over the map, testing that presumption and contributing to a sense that the high court is at least as much a crapshoot as ever.
Consider Department of Homeland Security v. Regents of the University of California, resulting in a decision to uphold the Obama-era executive order on DACA. There is growing, and welcome, consensus among conservatives that the DACA population, people brought to the United States illegally as children, ought to receive certain protections and treatment different from those who chose to break immigration laws on their own volition; the notion that one ought not be punished for the sins of the father, after all, is not inconsistent with conservative governing philosophy.
What is, or should be, inconsistent with conservative philosophy is the notion that such laws can be conjured up and imposed by the president through executive order — separation of powers and all that.
The DACA ruling sets a terrible precedent in this regard. Roberts, joined by the four liberal justices, essentially said that once it happens, the executive branch sidestepping the rule of law and taking on the role of the legislative branch is not only A-OK, but that successor administrations are bound to enforce extralegal “laws” spirited into existence by a previous executive.
Roberts tries to get away with this by saying that the administration can still undo a previous executive order, but that it must do so through a serpentine administrative process. In other words, it ought to be, in the chief justice’s opinion, easier to create a law by executive fiat than to undo one.
Roberts employed similar circumlocutions in rendering his decision on June Medical Services v. Russo, which overturned a Louisiana state law placing some regulations on abortion clinics. In this one, Roberts tests the elasticity of the concept of stare decisis — “to stand by things decided.” It is a useful and necessary legal principle, properly applied, but the case upon which Roberts hung his precedent-cleaving hat was 2016’s Whole Woman’s Health v. Hellerstedt, in which Roberts himself dissented, arguing that the decision was poorly reasoned and constitutionally untenable.
And yet, four years later, the same poorly reasoned, constitutionally inimical law was his basis for upholding a similarly poorly reasoned, constitutionally inimical law. By this interpretation of stare decisis, both Dred Scott and Plessy v. Ferguson ought to have stood, because, well, they were decided.
Gorsuch also played fast and loose with conservative juridical philosophy last month in Bostock v. Clayton County. He wrote the majority opinion, finding, magically, that Title VII of the 1964 Civil Rights Act extends protections against employment discrimination based on sex to homosexual and transgender individuals. Whether or not it should is not the court’s concern, that’s for Congress to figure out.
And yet, it hasn’t all been gloom from the bench. In Seila Law LLC. v. Consumer Financial Protection Bureau, Roberts turns his affection for precedent to good in affirming that the nation’s chief executive has authority over executive entities (usurpation works both ways). And in one of the most important rulings in years, the high court, led by Roberts and Gorsuch, struck a blow for educational access, religious liberty, and equal protection under the law in finally taking a step toward striking down reprehensible Blaine Amendments — relics of anti-Catholic bigotry which still contaminate state constitutions around the nation and notoriously bar the implementation of school choice, the most beneficial social reform this nation could adopt.
So what’s going on? What’s going on is that some of the conservative justices on the Supreme Court are experiencing something of an identity crisis. Roberts, Gorsuch, and Kavanaugh are, in my opinion, juridical conservatives at heart, as evidenced by the reasoning displayed in many of their opinions; but other impulses are pressing on them, impulses which should be extraneous to their role, but which nonetheless exert weight — politics, legacy, public image.
As difficult as they may be to ignore, these pressures need to be resisted. It is not the role of a jurist, least of all a conservative one, to be troubled by such ephemeral concerns. Liberal instinct is to effect change, and therefore change becomes the important thing. The conservative instinct, on the other hand, is tutelary, to preserve what has been inherited and refined, and therefore the process is the important thing. Roberts’s affection for the institution of the Supreme Court is admirable, but the idea that he and his colleagues need to continually resurrect is that preservation of the institution (and the balanced concepts of judicial restraint and fealty to original intent) requires its custodians to be separate from the whims and passions of the moment. And at this moment, when the prevailing inclination is to tear down institutions, the custodianship of conservative jurists, unimpeded by external distractions, is indispensable.
Kelly Sloan (@KVSloan25) is a Denver-based public affairs consultant and columnist.
