(Curt Levey) – Chief Justice John Roberts disappointed conservatives today – to a degree not seen since he saved ObamaCare in 2012 – when he sided with the Court’s four liberals to second guess the Trump Administration’s reasons for adding a citizenship question to the census, likely ensuring that the question will not be on the census given the looming deadline for printing the forms.
Perhaps Roberts thought he was “balancing” the Court by siding with the conservative Justices in the political gerrymandering decision issued today while siding with the liberals in this case, or by splitting the baby in the census case by rejecting some of the challengers’ claims and remanding the case to the lower courts. But conservatives won ‘t be fooled by a census decision that effectively gives the President’s critics exactly what they were seeking.
Whatever Roberts’ motives might be – I speculated here about the role that court packing threats might play – the census decision will surely deepen the impression that Roberts is the new Justice Kennedy, rather than the reliable fifth conservative vote that liberals feared and conservatives hoped for.
More broadly and equally concerning, the Court’s census decision – written by and made possible by Roberts – serves to encouraging the lower court judges who have second guessed the President’s motive and policy decisions at almost every turn, issuing a slew of injunctions that discard the normal deference paid to executive actions and, at times, seeming to join the Trump Resistance.
Justice Alito had good reason, in his separate opinion, to voice concern that today’s decision gives judges too much leeway to analyze the subjective motivations of executive officials whose policy decisions they disagree with. Allowing unelected judges to thus effectively set policy for the nation is clearly not what the Founding Fathers had in mind.
Mr. Levey is president of Committee for Justice