U.S. Supreme Court Chief Justice John G. Roberts arrives at the U.S. Capitol on Jan. 16, 2020. Credit: Diego M. Radzinschi / ALM

Chief Justice John Roberts Jr., for the third time in less than two months, on Thursday formed a surprising majority in a contentious case, defying the Trump administration's anti-immigration agenda and drawing criticism from conservatives, while bolstering his contention the court is not reflexively swayed by politics.

Roberts, joined by the court's liberal members, led the divided 5-4 ruling that said the Trump administration had not followed the law in its effort to end the Deferred Action for Childhood Arrivals immigration program. The ruling delivered a setback for Trump, but the court said it would give the administration a second chance to make its case to terminate the Obama-era program benefiting hundreds of thousands of immigrants who arrived in the U.S. as children.

All of the justices agreed that the Trump administration—or any administration—could end the program of delayed deportation of 700,000 so-called Dreamers. The court split, however, over whether the Trump administration had acted "arbitrarily and capriciously" in its effort to wind down the program.

Earlier in the week, Roberts joined the 6-3 majority in declaring that Title VII protected LGBT employees from workplace discrimination. Just a couple of months ago, the chief joined another 6-3 per curiam opinion in shutting down a potential blockbuster Second Amendment case.

Roberts' ruling in the DACA case was surprising because he and other conservative members of the court appeared to be leaning in favor of Trump at oral arguments last year. However, Roberts did mention the hardships that Dreamers would endure if the program were ended. The Trump administration, Roberts subsequently ruled, failed to address those hardships and the reliance interest.

Demonstrators outside the U.S. Supreme Court in Washington during oral arguments in November at the DACA cases. Credit: Diego M. Radzinschi / ALM

The acting secretary of Homeland Security, the chief justice said, "failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients." Roberts added: "That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner."

Roberts' opinion was reminiscent of his majority decision last term in which he also found that the administration failed to follow rules set out in the Administrative Procedure Act when it tried to put a citizenship question on the 2020 census. Both cases highlight Roberts' reputation as a stickler for rules, especially those regulations that ensure political accountability. The census ruling did not make an appearance in his Dreamers opinion.

In the census and immigration rulings, Roberts left open a possible redo by the administration, which blunted what could have been more severe partisan attacks on him, the decisions and the court. In effect, he left the status quo in place. He ruled against the Trump administration, but in neither case did he back the merits of the arguments Trump was making.

When Justice Anthony Kennedy retired, Roberts was viewed as the most likely new "middle" of the court.

But the calculus for Roberts is different than it was for Kennedy. Roberts is a more conservative judge than Kennedy, and he juggles an inclination or desire to move the law and the court to the right—as he has done in several areas since becoming chief in 2005—with his concern for the institution's reputation and credibility in the eyes of the public.

"We do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation," Roberts said in October 2018 in remarks at the University of Minnesota shortly after the rancorous Senate confirmation hearings for Justice Brett Kavanaugh. "And I want to assure all of you that we will continue to do that to the best of our abilities whether times are calm or contentious."

U.S. Supreme Court. Photo Michael A. Scarcella/ ALM

Just one month later, Roberts felt compelled to respond to Trump's dismissal of a judge who ruled against the administration's asylum policy as "an Obama judge." Roberts stated: "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. That independent judiciary is something we should all be thankful for."

The DACA ruling was the second time this week a conservative member of the court led a majority in a decision cheered by progressives.

On Monday, a 6-3 majority ruled in Bostock v. Clayton County, Georgia, that Title VII's ban on workplace discrimination includes discrimination based on sexual orientation and gender identity. This time, the majority included Roberts and Trump appointee Neil Gorsuch, along with the court's four liberal justices. Because he was in the majority, Roberts had the power to assign the majority opinion and he chose Gorsuch. Both of their votes in the LGBT case ensured a cross-ideological majority on a flash point issue.

In April, the justices in a 6-3 unsigned decision—with Justices Clarence Thomas, Samuel Alito Jr. and Gorsuch dissenting—decided that a challenge to a New York City gun restriction, which had been revoked, was moot. Kavanaugh concurred, once again giving the decision a nonpartisan cast. The Second Amendment issues were left unresolved.

Some conservatives on Thursday expressed their disappointment in Roberts, as they have when he aligns with the court's liberal colleagues and joins, or writes, a ruling that Republicans perhaps would not have wanted.

"This is a bad case of déjà vu from the Court's decision in the census case a year ago," Carrie Severino, president of the Judicial Crisis Network, said. "Chief Justice Roberts once again has failed to stand up for the institutional interests of the Court by allowing it to be weaponized for partisan ends."

The criticism from the right mirrored the words said about last year's ruling in the census citizenship question case.

Still, others cautioned not to declare a shift to the left by Roberts. "We aren't seeing the emergence of Chief Justice John Roberts as a liberal," Elizabeth Wydra, president of the Constitutional Accountability Center, said.

The Trump administration's actions have been so "repeatedly outlandish" that Roberts "frankly has no choice but to call them out on it," Wydra 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.

The term is not over. Still to come are decisions in cases involving Louisiana's restrictions on abortion physicians, Trump's challenge to U.S. House and grand jury subpoenas, public funding of religious schools, "faithless electors" and the fate of the Consumer Financial Protection Bureau.

All of which present unique challenges for Roberts and the institution he leads.

 

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