December 26, 2018--Swing Vote

Occasionally, one of my predictions comes true. For example, my suggesting in early October that with swing man Anthony Kennedy no longer on the Supreme Court Chief Justice John Roberts would assume that role.

I noted that Supreme Courts are referred to by historians after whomever is the Chief. Thus there is the Warren Court and the Rehnquist Court and the Berger Court or, for that matter, the John Marshall Court.

Knowing this, I wondered, with Trump appointing far-right judges, how the current Chief Justice, John Roberts, was feeling about his name being associated with a court that has descended into full-bore partisanship. 

It appears that he is now thinking that unless he becomes the swing vote, replacing Kennedy, the Roberts Court will forever after be dominated by ideological lightweights such as Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. And though he does not appoint his colleagues, he will still be perceived as responsible for their actions.

Does Roberts want to go down in history rafted up with this crew?

Apparently not, which is good news to progressives and America as the Supreme Court is likely over the next year to be called on to decide if a sitting president (Trump) can be indicted or if the Mueller Report, when it is completed, can be withheld from public view by Trump's small-minded Justice Department.

The latest evidence that Roberts has become the court's swing man was his vote last week to join the four liberal-leaning justices in rejecting an appeal from the Trump administration that would, if approved, have overturned many decades of asylum policy. To severely restrict the rules by which fleeing refuges can seek the protection of the United States. 

Earlier, he again joined the liberals in overruling a lower court decision that would have restricted federal funding for Planned Parenthood. Thomas and his comrades cried foul. But there was Roberts guided by the Constitution, not partisan reflex.

In even bigger picture terms Roberts' behavior and leadership is of great consequence because, if it persists, it will mean that at least one of the three branches of our otherwise dysfunctional government might again begin to function as envisaged by the Founders and thus will be guided by the Constitution they bequeathed to us.

Then there is the open spat that has been festering since 2015 between Trump and Roberts. All initiated by Trump's intemperate criticism of what he claimed to be the ideological bias of federal judges.

During the election campaign Trump frequently spoke out against what he asserted were liberal federal judges who acted as political partisans. Those in the 9th circuit, for example.

Two days before Thanksgiving Trump attacked an "Obama judge" for ruling against him on immigration. In an unusual public rebuke Rogers shot back, claiming that there are no "Obama judges, Bush Judges, or Clinton judges." Just independent ones.

Actually, there are highly partisan federal judges who are guided more by their beliefs than by precedent or the Constitution. Conservatives as well as liberals. Supreme Court justice Anton Scalia is a powerful example of the former. 

But Roberts is articulating his aspirations for the judiciary and is modeling independent-minded behavior that he hopes will become the standard. He should be commended for that.