Now It’s Chief Justice Roberts’ Turn To Take Care

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In February Chief Justice John G. Roberts Jr. lamented that “partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees.” Roberts was referring to the very real danger of institutional mistrust — the widespread belief among the American public that the Court is no longer an impartial judicial body focused on impartial interpretation of the Constitution, but that its decisions are increasingly aimed at moving a partisan agenda.

Roberts is rightfully concerned about his legacy as Chief Justice. How will the Roberts Court be remembered? Will it be remembered for guarding and fortifying the rule of law in the face of an unprecedented onslaught of partisan political pressure. Or will history sadly record that the Roberts Court succumbed to the cynical use of the judiciary as a forum to air partisan grievances?

Perhaps no case offers Roberts a greater opportunity to show his mettle than U.S. v Texas, the lawsuit brought by Republican leaders from Texas and 25 other states challenging the legality of President Obama’s immigration executive actions which temporarily defer the deportation of undocumented youth and parents. The case, currently being briefed by the parties, is set for oral argument before the Supreme Court on April 18.

The first — and arguably most important — issue Chief Justice Roberts and the Associate Justices will have to decide is whether Texas and the other Republican states even have the right to be in court. And, it’s important because not every disagreement has the right to be aired out in a federal court just because one party is upset. As a general rule, federal courts only have authority to hear actual “cases or controversies,” a term that does not include “political questions.” At bottom, the question the Roberts Court will have to answer is this: Are the 25 GOP governors and attorneys general asking the justices to resolve a legal dispute or a political fight?

That’s called “standing.” And Chief Justice Roberts has a well-deserved reputation as a tough customer when it comes to standing.

Since he joined the Supreme Court in 2005 Roberts has authored and joined several important opinions on the subject. In DaimlerChrysler Corp. v. Cuno, a case decided shortly after Roberts took his seat on the Supreme Court, the Chief Justice wrote, “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

And what is the “proper role” of the judiciary to which Roberts referred?

In Summers v. Earth Island Institution, an opinion authored by the late Justice Antonin Scalia and joined by Roberts, the Court said its proper role is to redress injury not “to review and revise legislative and executive action.” The restricted role of the federal courts, Roberts has agreed, “is founded in concern about the proper — and properly limited — role of the courts in a democratic society.”

Roberts has been wise to stand firm against the use of the judiciary as a forum to air political disputes. Allowing individual states to challenge the executive’s discretionary policy decisions based on incidental effects — such as the GOP’s claim that DACA and DAPA+ will increase the cost of driver’s license issuance to Texas — would open the door to a floodgate of politically motivated lawsuits challenging a myriad of presidential policies. The result would be judicial chaos, threatening America’s very constitutional structure.

Roberts’ strict view of the Court’s proper role in democratic society has sometimes put him in the court’s minority. In Massachusetts v. EPA, a case where the Supreme Court held that a state has standing to sue the EPA for not enforcing the Clean Air Act, the Chief Justice dissented, concluding the States’ claim did not meet the particularized injury requirements of standing. The injury was global, not direct, and redressability needed to come from the legislature not the bench Roberts concluded.

In what now seems prescient in light of the GOP’s Texas challenge to DAPA and DACA+, Roberts reminded the Court that,

[O]ur cases cast significant doubt on a State’s standing to assert a quasi-sovereign interest — as opposed to a direct injury — against the Federal Government. As a general rule, we have held that while a State might assert a quasi-sovereign right as parens patriae ‘for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them.’”

Predictably, the Republicans who’ve challenged DAPA and DACA+ rely heavily on the Massachusetts case to claim standing in the Texas case. Unfortunately for them Massachusetts concerned an invasion of states independent and legally-protected sovereign interests in “the earth and air” within their domain. The case is, therefore, easily distinguishable on its facts. As long-time New York Times Supreme Court reporter, now analyst, Linda Greenhouse wrote on November 12, 2015:

The claim of Texas and its allies to standing is preposterous. The Fifth Circuit majority found that the state’s concrete injury lies in the fact that some 500,000 undocumented Texas residents would be entitled under the deferral program to obtain drivers’ licenses, and the state, which charges $25 for a six-year license, would lose “a minimum of $130.89” on each license. “Even a modest estimate would put the loss at several million dollars.” Hmmm. My own user-friendly state of Connecticut charges $66 for an ordinary driver’s license and offers undocumented immigrants a drive-only license (legal authorization to drive, but not to be used for identification) for a $72 fee. I guess the great state of Texas would rather fight the federal government than figure out how to balance its motor vehicle department’s books.

Former U.S. Solicitor General Walter Dellinger echoed this sentiment in an amicus brief filed with the Supreme Court in support of the immigration executive actions. “Indeed,” Dellinger asserted, far from meeting the rigorous demand of standing, “this case has all the trappings of an epic political battle”.

And, again, Linda Greenhouse, seeming to directly address Chief Justice Roberts, wrote on February 4, 2016, in a piece entitled The Supreme Court vs. The President, that the Texas lawsuit against the immigration executive actions had no place in court. “This is a case that should have been tossed out of Federal District Court in the first instance.” Greenhouse said. “Instead,” she continued, “its stakes are now heightened enormously. If the justices approach their task as judges and not as politicians, the administration will easily prevail. It is the Roberts court that now needs to take care.’

Indeed it is.

And Chief Justice Roberts, in particular, must take care that his well settled respect for the strict rules of standing are not compromised by the toxic partisan politics that seek to intrude upon the hallowed institution currently in his trust.